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RA1051  F45  Field's  Medico-legal 


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MEDICO-LEaiL  GUIDE 


DOCTORS  AND  LAWYERS, 


EMBRACING  THE  FOLLOWING  SUBJECTS: 


MEDICAL  WITNESSES;  MEDICAL  EXPERT  TESTIMONY j 
INSANITY  AND  ITS  LEGAL  RELATIONS  i  PRIVILEGED 
COMMUNICATIONS ;  ABORTION i  CIVIL  LIABILITY 
OF  MEDICAL  MEN  FORMAL  PR  A  C  TICE ;    CRIMI- 
NAL   LIABILITY  FOR  MALPRACTICE ;    LIA- 
BILITY FOR  PRACTICING  IN  VIOLATION 
OF  STATUTES;   DAMAGES;  COMPEN- 
SATION;  MEDICAL    ETHICS. 


BT 


GEORGE  V^.  FIELD,  LL.  B. 


BANKS  &  BKOTHERS : 

ALBANY,  NEW  YORK, 

473  and  475  Broadway.  144  Nassau  Street, 

1887. 


Entered  according  to  Act  of  Congress,  in  the  year  eighteen  hundred 
and  eighty-seven, 

By  George  Washington  Field, 

In  the  ofBce  of  the  Librarian  of  Congress,  at  Washington,  D.  0. 


"^O^'^On,     V\4vvC-Jl,  Vx^^vt^.M 


TABLE  OF  CONTENTS. 


CHAPTER  I. 

MEDICAL    WITNESSES. 

§    1.     Compulsory  attendance  of. 
2.     The  oath  j  and  religions  belief. 

CHAPTER  II. 

MEDICAL    EXPERT   TESTIMONY. 

§     3.  In  general ;  the  opinions^of  medical  men. 

4.  Unsatisfactory  character  of  expert  testimony, 

5.  Opinions  of  medical  men  as  to  sanity. 

6.  Where  opinions  rest  upon  personal  examination,  the 

facts  should  be  stated. 

7.  Governmental  experts  recommended. 

8.  Opinions  of  non-expert  witnesses  ;  when  allowed. 

9.  Distinction  between  expert  and  non-expert  witnesses^ 

CHAPTER  III. 

INSANITY   AND   ITS   LEGAL   RELATIONS. 

f  10.  Varieties  of  unsoundness  of  mind. 

11.  Insanity  defined  and  described. 

12.  Amentia ;  what  it  embraces. 

13.  Imbecility  ;  what  it  embraces. 


iv  TABLE   OF  CONTENTS. 

§  14.  Cretinism. 

15.  Idiocy. 

16.  Imbecility. 

17.  Question  of  civil  and  criminal  liability  of  imbeciles 

considered. 

18.  Imbecility  as  an  excuse  for  acts  civil  and  criminal. 

19.  Moral  imbeciles. 

20.  Dementia  distinguished  from  amentia. 

21.  Legal  relations  of  dementia — in  case  of  wills. 

22.  Mania  defined. 

23.  General  mania ;  character  of. 

24.  Intellectual  mania. 

25.  Partial  mania,  or  monomania. 

26.  Delusions  and  hallucinations  in  general. 

27.  Moral  and  effective  mania  ;  morbid  impulses. 

28.  Homicidal  mania,  or  the  propensity  to  kill. 

29.  Kleptomania,  or  propensity  to  steal. 

30.  Disinclination  to  regard  it  as  a  defense. 

31.  Pyromania,  or  a  propensity  to  burn ;  and  aidoimania, 

sexual  prox)ensity. 

32.  These  have  not  received  much  favor  as  a  defense. 

33.  Alcohol ;  its  uses  and  effects. 

34.  The  psychological  effects  of  alcohol. 

35.  Alcoholism  defined. 

36.  Quininism ;  similarity  of  symptoms  to  alcoholism. 

37.  Delirium  in  general. 

38.  Legal  relations  of  delirium. 

39.  Delirium  tremens,  or  mania  a  potu. 

40.  Symptoms  and  general  characteristics  of  delirium 

tremens. 

41.  Legal  relations  of  delirium  tremens. 

42.  Civil  acts  of  persons  of  unsound  mind. 

43.  In  case  of  wills. 


TABLE    OF   CONTENTS.  V 

§  44.  Conduct  and  declarations  of  the  testator. 

45.  The  test  of  capacity  to  manage  business. 

46.  Doctrine  as  to  the  burden  of  proof. 

47.  General  presumption. 

48.  Test  of  capacity  to  contract. 

49.  Liability  for  torts. 

50.  Unsoundness  of  mind  as  a  defense  to  a  criminal 

charge. 

51.  Insane  delusions  and  irresistible  impulses. 

52.  Common  sources  and  manifestations  of  insane  delu- 

sions. 

53.  Test  of  capacity  required  for  criminal  responsibility. 

54.  Impulsive  mania,  or  uncontrollable  impulse. 

55.  Defense  on  the  ground  of. 

56.  In  case  of  drunkenness  ;  legal  responsibility. 

57.  Drunkenness  as  a  mitigation  of  criminal  acts. 

58.  Delirium  tremens  as  an  excuse  in  criminal  cases. 

59.  Dreaming  ;  illusions  and  delusions  common  to. 

60.  Legal  relations  of  dreaming. 

61.  Somnambulism;  common  manifestations  of. 

62.  The  legal  relations  of  somnambulism. 

63.  Statutory  provisions  relating  to  the  responsibility  of 

persons  mentally  unsound. 

64.  Construction  of  statutes  and  the  common  law  on  the 

subject. 

65.  Rules  suggested  on  examination  of  mental  condition. 


CHAPTER  IV. 

PRIVILEGED   COMMUNICATIONS. 

66.  At  common  law,  between  attorney  and  client. 

67.  Protection  of  confidential  communications  by  statutes. 


VI  TABLE    OF   CONTENTS. 

§  68.     Protection  of  confidential  communications  made  to 
clergymen  or  priests. 

69.  The  pri\dlege  may  be  v/aived. 

70.  Construction  of  the  statutes  on  the  subject. 

71.  The  g-eneral  rule  applicable  to  other  professions. 

72.  Illustration  of  the  rule  in  case  of  surgeons. 

CHAPTER  Y. 

ABORTION. 

§  73.  Defined  ;  quick  with  child  explained. 

74.  Maternal  causes  of  abortion . 

75.  Foetal  causes  of  aboi'tion. 

76.  Natural  and  innocent  causes  of  abortion. 

77.  Artificial  and  innOcent  abortion  ;  premature  labor. 

78.  Chief  methods  employed  to  produce  abortion. 

79.  Criminal  abortion  ;  methods  of  procuring. 

80.  Statutory  provisions  on  the  subject. 

81.  Construction  of  statutes  on  the  subject. 

82.  In  case  death  results  fi'om  p]-oducing\ 

83.  The  killing  of  a  quick  child,  or  of  a  woman  quick 

with  child,  in  attempts  to  produce  unlawful  mis- 
carriage. 

84.  Signs  of  abortion  during  the  life  of  the  patient. 

85.  Signs  on  examination  of  a  female  after  death. 

86.  Examination  of  the  foetus  ;  strains,  etc. 

87.  Infanticide  ;  distinction  between,  and  foeticide. 

88.  Evidence  of  life  subsequent  to  birth  of  child. 

89.  Modes  of  destroying  the  life  of  a  child  after  birth. 

90.  Summary  of  matters  to  be  observed  on  examination 

of  the  body  of  the  woman  to  determine  the  ques- 
tion of  abortion. 

91.  Indictments;  evidence. 


TABLE    OF    CONTENTS.  Vll 

CHAPTER   VI. 

CRIMINAL   LIABILITY   FOR    NEGLIGENCE    OR    MISCON- 
DUCT. 

§  92.     Statutory  provisions  on  the  subject. 

93.     General  criminal  liability  at  common  law  for  mal- 
practice. 

CHAPTER  VII. 

practice  without  a  license  or  diploma 
'prohibited. 

§  94.     General  provisions  of  statutes  on  the  subject. 

95.  Criminal  liability  for  practicing-  without  license. 

96.  Criminal  liability  for  causing  death  by  administering 

a  drug  or  medicine  in  a  state  of  intoxication. 

97.  Removal  of  attorneys  for  misconduct. 

98.  Duty  of  attorneys  to  the  court. 

99.  Disbarment  or  suspension  of  an  attorney  not  neces- 

sarilysfinal. 

CHAPTER  VII. 

civil   liability   for   MALPRACTICE. 

§  100.  Various  kinds  of  malpractice  defined. 

101.  Liability  for  damages  in  general  for  malpractice, 

102.  Skill  required  of  a  surgeon  or  physician. 

103.  Not  bound  to  use  the  highest  degree  of  skill. 

104.  Implied  duty  of  the  physician  or  surgeon. 

105.  These  general  principles  applicable  to  dentists. 

106.  Instance  of  the  liability  of  a  physician  in  a  special 

case  of  impropriety. 

107.  Proof  of  malpractice  ;  burden  of. 


Vlll  TABLE   OF   CONTENTS. 

CHAPTER  YIII. 

DAMAGES. 

§  108.  Matters  in  defense  or  mitigation. 

109.  In  case  of  contributory  negligence. 

110.  Punishment  for  the  crime  no  defense  to  civil  action. 

111.  The  measure  of  damages. 

CHAPTER  IX. 

COMPENSATION. 

§  112.     The  contract  for  services  and  compensation  may  be 
express  or  implied. 

113.  Common  presumptions ;    amount  of  compensation 

implied. 

114.  "Where  the  request  for  services  is  made  for  the  ben- 

efit of  another. 

115.  Intrusive  and  voluntary  services. 

116.  Measure  of  value  of  services. 

117.  Judgment   for   services   a  bar  to  action  for  mal- 

practice. 

118.  Statutes  regulating  the  collection  of  compensation. 

119.  Proof  of  a  diploma  from  a  medical  college. 

CHAPTER  X. 

MEDICAL   ETHICS. 

§  120.     Code  of  medical  ethics  of  the  state  of  New  York  and 
other  states. 


MEDICO-LEGAL  GUIDE, 


FOR 


Doctors  and  Lawyers, 


CHAPTEE  I. 

MEDICAL    WITNESSES. 
§  1.  Compulsory  attendance. 

A  physician  or  surgeon  may  be  required  to 
appear  and  testify  in  courts  or  before  judicial  or 
other  officers,  either  as  an  ordinary  witness  oi  as 
an  expert,  and  either  orally  or  by  deposition,  in 
the  same  way  as  a  non-professional  person,  that 
is,  upon  due  service  of  a  subpoena  upon  him, 
commanding  him  to  do  so.  In  various  states 
the  party  thus  served  with  a  subpoena  may,  at 
the  time  of  service,  if  it  be  in  a  civil  case,  de- 
mand fees  in  advance,  usually  lixed  by  statute, 


2  field's  medico-legal  guide. 

as  for  one  clay's  attendance  and  mileage*;  and  a 
failure  to  pay  him  such  sum  would  usually  con- 
stitute an  excuse  for  non-attendance.  Witness 
fees  are  fixed  by  statutes  in  the  various  states, 
and  the  amount  may  vary  in  different  courts  in 
the  same  state.  And  usually  in  the  various 
states  expert  witnesses  are  allowed  more  than 
common  witnesses  for  attendance,  w^hich  amount 
is  general!}^  fixed  by  statutes.  When  a  subpoena 
has  been  duly  served,  and  the  fees  advanced  when 
demanded,  if  the  witness  is  entitled  to  advance 
fees,  it  is  the  duty  of  the  person  thus  served  to 
obey  the  command  of  the  writ,  and  a  failure  to 
do  so  without  some  reasonable  cause, —  such  as 
physical  infirmity  or  some  accident  which  ren- 
dered it  impossible,  would  be  a  contempt  of 
court,  and  subject  the  offender  to  fine  or  impris- 
onment or  both.  On  these  subjects  it  may  be 
necessary  to  consult  the  local  statutes,  or  some  law- 
yer, for  information  where  it  is  important :  See 
1  Greenl.  on  Ev.,  §§  309,  310  ;  Best  on  Ev. 
(Morg.  Am.  ed.),  §  125  ;  3  Field's  Lawyers' 
BriefX  §§  297,  335  ;  1  Phil,  on  Ev.  116  ;  Field's 
Fed.  Courts,  §  225  ;  Rev.  Stat.  U.  S.,  §§  848, 
870. 


MEDICAL    WITNESSES.  3 

§  2.  The  oath  —  religious  belief. 

Passing  all  questions  relating  to  tlje  compe. 
tency  of  witnesses  in  general,  we  will  consider 
briefly  the  oath,  affirmation  or  asseveration  re- 
quired of  the  witness,  by  which  he  promises  to 
tell  the  truth  in  reference  to  matters  under  con- 
sideration and  to  which  he  is  called  to  testify. 

It  Avas  affirmed  by  Lord  Coke,  who  represented 
the  bigotry  of  the  age  in  Avhich  he  lived,  that  an 
infidel  could  not  be  a  witness,  which  would  ex- 
clude Jews,  Mohammedans  and  all  pagans,  and  iu 
fact  all  who  were  not  Christians  :  7  Co.  17  ; 
PufFendorf,  b.  4,  c.  2,  §  4  ;  Best  on  Ev.  (Morg. 
Am.  ed.),  §  134.  A  former  test  of  the  qualifica- 
tion of  a  person  to  take  an  oath  was  that  he  be- 
lieve in  a  God  who  will  punish  fiilse  swearino; 
in  a  future  life.  But  these  tests  have  generally 
been  discarded  by  custom  or  abolished  by  statute. 

The  form  of  administering  the  oath  may  ]je 
varied  to  conform  to  the  religious  belief  of  the 
individual,  so  as  to  make  it  binding  upon  his 
conscience  ;  and  it  may  be  administered  by  any 
ceremony  calculated  to  accomplish  the  object. 

A  Jew  may  be  s\vorn  upon  the  Pentateuch  or 
Old  Testament  (with  his  head  covered)  ;  a  Mo- 


4  field's  medico-legal  guide. 

hammedan  on  the  Koran  ;  a  Gentoo  bv  toiichino^ 
with  his  hand  the  foot  of  a  Brahmhi  or  priest  of 
his  reliction  ;  a  Brahmin  bv  touchino^  the  hand 
of  another  such  priest ;  a  Chinaman  by  breaking 
a  China  saucer  ;  a  Christian  by  laying  his  liand 
upon  tlie  New  Testament  while  a  familiar  for- 
mula is  repeated. 

In  various  states,  under  statutes,  it  is  suffi- 
cient for  the  witness  merely  to  hold  up  a  hand 
while  the  usnal  formula  is  being  repeated  by  the 
proper^  officer.  And  in  most  of  the  states  he 
may  merely  declare  or  affirm,  if  he  elects  so  to 
do,  the  proper  officer  in  the  presence  of  the  wit- 
ness merelv  statino-  that  the  witness  does  so  de- 
clare  or  affirm  that  he  will  tell  the  truth,  to 
which  the  witness  assents  orall}^  or  by  a  nod  of 
the  head  :  See  Bouv.  L.  D.,  Oath;  Best  on  Ev. 
(Morg.  Am.  ed.),  §  163  ;  1  Greenl.  on  Ev.  (7th 
ed.),  §  328  ;  Tyler  on  Oaths,  15  ;  1  Whart.  C. 
L.  (7th  ed.),  §§  795-799  ;  3  Field's  Lawyers' 
Briefs  (sub.  Evidence),  §  302. 

The  objection  to  the  competency  of  witnesses 
who  have  no  relisfious  belief  is  removed  in  Ens^- 
land  and  in  most  of  the  states  by  statutory  en- 
actments :   1  Whart.  on  Ev.,  §  395. 


CHAPTER  II. 

MEDICAL    EXPERT    TESTIMONY. 
§  3.  In  general ;  opinions  of  medical  men. 

Expert  witnesses  are  those  who  are  admitted 
to  testify  from  a  peculiar  knowledge  of  some  art 
or  science,  a  knowledge  of  which  is  requisite  or 
of  value  in  settling  the  point  at  issue  :  Bouv. 
Law.  Die,  Experts.  They  are  persons  profes- 
sionally conversant  with  the  practice,  science, 
skill,  or  trade  in  question  :  Best  on  Ev.,  §  346  ; 
Strickel  on  Ev.  408. 

On  this  sul)ject  Mr.  Greenleaf  observes  :  "  On 
questions  of  science,  skill  or  trade,  or  others  of 
a  like  kind,  persons  of  skill,  sometimes  called 
experts,  may  not  only  testify  to  facts,  but  are 
permitted  to  give  their  opinions  in  evidence. 
Thus  the  opinions  of  medical  men  are  constantly 
admitted  as  to  the  cause  of  disease  or  death,  or 
the  consequences  of  woimds,  or  as  to  the  sane  or 
insane  state  of  a  person's  mind,  as  collected  from 
a  number  of  circumstances,  and  as  to  other  sub- 
jects of  professional  skill.     And  such  opinions 


6  field's  medico-legal  guide. 

are  admissible  in  evidence,  though  the  witness 
founds  them,  not  on  his  own  personal  observa- 
tion, ])ut  o]i  the  case  itself,  as  proved  b}^  other 
witnesses  on  the  trial  :  "  1  Greenl.  on  Ev.,  §  440  ; 
Phil.  &  Am.  on  Ev.  899  ;  Stark,  on  Ev.  154  ; 
a  FieRVs  Lawyers'  Briefs,  §  317  ;  Hardy  v. 
Merill,  57  N.  H.  227  ;   22  Am.  Rep.  441. 

It  may  be  observed,  generally,  that  a  witness 
is  not  required  to  testify  in  a  positive  manner, 
but  he  may  state  his  impression  as  to  occurrences, 
facts  or  events,  from  his  knowledge  or  recollec- 
tion of  them,  and  he  has  the  right,  and  may  be 
compelled  to  refresh  or  assist  his  memory,  where 
it  is  at  fault,  by  reference  to  a  written  instrument, 
memoranda,  or  other  document.  1  Greenl.  on 
Ev.,  §  440  ;  Blake  v.  People,  73  N.  Y.  586  : 
Reed  v.  Boardman,  20  Pick.  (Mass.)  441  ;  Kan 
V.  Stivers,  34  la.  123  ;  3  Field's  L.  B.  (sub.  Ev- 
idence), §  318. 

A  witness  havino^  some  knowled^T.  of  the  value 
of  property  may  give  his  opinion  of  its  value  : 
Emerson  v.  Gas  Co.,  6  Allen  (Mass.),  148  ;  Bank 
V.  Rutland,  33  Vt.  414  ;  Cautling  v.  Railroad 
Co.,  54  Mo.  385  ;  14  Am.  Rep.  467.  And 
an   expert  in  science,  skill,  or   trade,    may  ex- 


MEDICAL    EXPERT    TESTIMOKT.  7 

press  an  opinion  in  reference  thereto :  Car- 
ter V.  Boehem,  1  Smith's  Lead.  Cas.  286  ; 
Stark,  on  Ev.  154 ;  Phil.  &  Am.  on  Ev.  899. 
Bat  a  medical  expert  cannot  express  an  opinion 
or  o'ive  his  views  as  to  matters  of  leoal  or  moral 
obligation,  as  whether  a  practitioner  of  medicine 
has  laithfnlly  and  honorably  discharged  bis  dnty 
to  his  medical  brethren,  as  this  would  be  a  mat- 
ter for  the  court  or  jury  to  determine  :  Ramage 
V.  Ryan,  9  Bing.  (Eng.)  333  ;  Campbell  v.  Rich- 
ards, 5  B.  &  Ad.  (Eng.)  340  ;  Joyce  v.  Ins.  Co., 
45  Me.  168  ;  Gibson  ^.  Williams,  4  Wend.  320  ; 
People  V.  Bodine,  1  Den.  (N.  Y.)  281  ]  Cauthng 
V.  Railroad   Co.,  supra. 

In  a  note  by  Mr.  Smith  to  Carter  v.  Boehem, 
supirt,  he  observes:  "On  the  one  hand  it  ap- 
pears to  be  admitted  that  the  opinion  of  witnesses 
possessing  peculiar  skill  is  admissible  whenever 
the  subject-matter  of  inquiry  is  such  that  inex- 
perienced persons  are  unlikely  to  prove  capable 
of  forming  a  correct  judgment  upon  it  without 
such  assistance  ;  in  other  words,  when  it  so  far 
partakes  of  the  nature  of  a  science  as  to  require 
a  previous  habit  or  study  in  order  to  the  attain- 


8  field's  medico-legal  guide. 

ment  of  it ;  while  on  the  other  hand  it  does  not 
seem  to  be  contended  that  the  opinions  of  wit- 
nesses can  be  received  when  the  inqniiy  is  into 
a  snbject- matter,  the  natnre  of  which  is  not  such 
as  to  require  an}"  peculiar  habits  or  study  in  or- 
der to  qualify  a  man  to  imderstand  it  :  "  See 
Hardy  v.  Merill,  56  N.  H.  227;  Com.  v.  Sturtevant, 
117  Mass.  122;  19  Am.  Rep.  401.  And  a 
witness  cannot  generally  give  his  opinion  as  an 
expert  upon  matters  of  common  knowledge,  and 
not  requiring  special  skill  or  experience  :  White 
V.  Ballon,  8  Allen  (Mass.),  408;  New  Eng. 
Glass  Co.  V.  LovelL  7  Cush.  (Mass.)  321  ;  Luce 
V.  Dorchester  Ins.  Co.,  105  Mass.  299.  Thus 
brakemen,  baoo'^cre-masters  and  conductors  can- 
not  testify  as  experts  as  to  the  coupling  of 
cars  and  its  dangers  :  Muldowney  v.  111.  C.  R. 
Co.,  36  la.  462  ;  Page  v.  Parker,  40  K  H.  47. 
Nor  is  it  admissible  to  give  an  opinion  as  an  ex- 
pert as  to  the  management  of  fire  :  Teal  v.  Bar- 
ton, 40  Barb.  37  ;  Fraser  v.  Tupper,  29  Vt.  409. 
Or  as  to  the  necessity  of  a  gate  and  signals  at  an 
open  draw-bridge  :  Nowell  v.  Wright,  3  Allen, 
166. 


MEDICAL   EXPERT    TESTIMONY.  9 

§  4.  Unsatisfactory  character  of  expert  testimony. 

The  value  of  expert  testimony  may  depend 
upon  various  circumstances,  as  upon  the  circum- 
stance of  corroboration  or  not  by  common  or 
other  expert  testimony,  or  upon  the  circumstance 
of  contradiction  or  not  by  testimony,  common 
or  expert.  And  in  many  cases  expert  testimony, 
though  it  may  be  competent,  is  of  little  value  : 
Best  on  Ev.  (6th  ed.),  §  514  ;  Taylor's  Ev.,  §  50  ; 
Dickinson  v,  Fitchburgh,  13  Gray  (Mass.)  ; 
Winacs  v.  New  York  &"e.  K.  Co.,  21  How.  (U. 
S.)  101  ;  Tracy  Peerage  Case,  10  C.  &  F. 
(Eng.)  191.  See  also  article  by  Prof.  Wash- 
burn, 1  Am.  Law  Rev.  45  ;  Mr.  Lawson's  arti- 
cle, 25  Alb.  Law  Jour.  367.  And  this  is 
especially  the  case  in  ex  parte  investigations  : 
1  Whart.  C.  S.  (7th  ed.),  §  821  h.  And  in  such 
cases  expert  testimony  is  inadmissilDle  if  better 
evidence  can  be  obtained  :  State  v.  Hayes,  22 
La.  An.  39. 

On  this  subject  Mr.  Wharton  observes:  "  Li 
all  matters  of  material  law,  expert  testimony, 
when  i'uUy  and  fairly  collected,  is  to  be  accepted 
as  a  matter  of  fact.  .  .  .  Nothing  is  more 
common  than  to  examine  a  surgeon  as  to  whether 


10  field's  medico-legal  guide. 

death  resulted  from  natural  causes,  or  from  cer- 
tain artificial  ageucies  which  may  l^e  the  subject 
of  inquiry,  and  as  to  whether  certain  stains  were 
from  human  blood.  In  such  cases,  when  ex- 
perts testify  to  luidisputed  demonstrations  of 
physical  science,  then  the  court  accepts  such  ren- 
dition and  declares  the  law  that  therefrom 
springs.  When  the  facts  are  disputed,  then  the 
jury  is  to  determine  where  the  preponderance  of 
proof  lies.  But  when  the  testimony  of  the  ex- 
pert touches  either  jurisprudence  or  speculative 
psychology  or  ethics,  then  such  testimony  is  to 
be  viewed  as  a  mere  argument,  which,  if  admis- 
sil)le  at  all,  is  to  be  treated  simply  as  if  ad- 
dressed to  the  judgment  of  the  court:  "  1  Whart. 
C.  L.,  §  50.  See  also  1  Whart.  &  S.  Med. 
Jur.,  §§  280-282  ;  1  Stark.  Ev.  154  ;  Gardiner 
V.  People,  6  Park.  C.  R.  (N.  Y.)  155  :  State  v. 
Knights,  43  Me.  11  ;  Caleb  v.  State,  39  Miss. 
722  ;  Gaines  v.  Commonwealth,  50  Pa.  St.  319. 
Of  the  character,  quality  and  value  of  expert  tes- 
timony as  to  sanity,  Judge  Davis,  of  the  Supreme 
Court  of  Maine,  in  Neal's  Case,  used  the  follow- 
ing perhaps  rather  extravagant  expressions  on 
the  subject :   "If  there  is  any  kind  oi'  testimony 


MEDICAL    EXI>ERT    TESTIMONY.  11 

that  is  not  only  of  no  value,  but  even  worse  than 
that,  it  is,  in  my  judgment,  that  of  medical  ex- 
perts upon  the  question  of  mental  unsoundness. 
They  may  be  able  to  state  the  diagnosis  of  a  case 
most  learnedly  ;  but  upon  the  question  whether 
it  had  at  a  oiven  time  reached  such  a  stao^e  that 
the  subject  of  it  was  incapable  of  making  a  con- 
tract, or  irresponsible  for  his  acts,  the  opinion  of  his 
neighbors,  if  men  of  good  common  sense,  would 
be  worth  more  than  that  of  all  the  experts  in  the 
country  :  "   1  Redf.  on  Wills,  ch.  3,  §  13. 

Of  the  unsatisfactory  character  of  expert 
testimony  Judge  Woodruff  uses  the  following 
more  temperate  language  in  his  charge  to  a  jury  : 
•'Where  the  opinion  is  speculative,  theoretical,  and 
states  only  the  belief  of  the  witness,  while  yet 
some  other  opinion  is  consistent  with  the  facts 
stated,  it  is  entitled  to  but  little  weight  in  the  minds 
of  the  jury.  Testimony  of  experts  of  this  latter 
description,  and  especially  where  the  speculative 
and  theoretical  character  of  the  testimony  is 
illustrated  by  opinions  of  experts  on  both  sides 
of  the  question,  is  justly  the  subject  of  remark, 
and  has  been  often  condemned  by  judges  as  of 
slight  value.     And  like  observations  apply,  to  a 


12  field's  medico-legal  guide. 

greater  or  less  degree,  to  the  opinion  of  witnesses 
who  are  employed  for  a  purpose  and  paid  for 
their  services  :  who  are  bou^'ht  to  testify  as  wit- 
nesses  for  their  employees.  ...  This  con- 
demnation is  not  always  applicable  ;  often  it 
would  be  unjust.  Where  an  expert  of  integrity 
and  skill  states  conclusions  which  are  the  neces- 
sary or  even  the  usual  results  of  the  facts  upon 
which  his  opinion  is  based,  the  evidence  should 
not  be  lightly  esteemed  or  hastily  discredited  :  " 
Gay  V.  Mut.  Ins.  Co.,  2  Bigelow's  Life  Ins.  Cas. 
14. 

Drs.  Wharton  and  Stiles,  in  their  valuable 
work  on  Medical  Jurisprudence,  express  them- 
selves on  this  subject  as  follows  :  "  Experts  have 
been  found  to  testify  that  no  sane  person  com- 
mits suicide,  and  that  all  suicides  are  insane  ; 
that  all  men  are  more  or  less  insane  ;  that  certain 
propensities  or  faculties  can  become  insane  by 
themselves,  and  when  insane  are  irresistible : 
that  very  bad  people,  and  especially  old  convicts, 
are,  as  a  rule,  insane  ;  and  that  certain  signs, 
which  signs  the  great  body  of  the  profession  re- 
gard as  indifferent,  are  sure  marks  that  insanity 
has  set  in.     There  is  in  fact  no  psychological 


MEDICAL    EXPERT    TESTIMONY.  13 

defense,  no  matter  how  whimsical,  that  has  not 
been  based  on  the  specnlations  of  isolated  ex- 
perts, and  that  has  not  found  some  isolated  ex- 
perts to  swear  to  on  trial.  That  the  sober, 
practical  thought  of  the  great  body  of  alien- 
ists reject  these  extravagancies,  cannot  be  ques- 
tioned ;  but  how  are  the  views  of  this  great 
body  to  be  ascertained  ?  Of  course  it  is  easy 
for  a  party  to  summon  the  single  expert  who 
may  happen  to  have  propounded  the  bizarre 
theory  which  is  necessary  to  sustain  such 
party's  case.  But  how  is  such  expert  to  be 
contradicted  ?  How  is  it  to  be  shown  that  the 
whole  sense  of  the  profession  is  against  him,  and 
that  he  is  himself  laboring  imdei*  one  of  those 
delusions  to  which,  as  has  been  seen,  men  of 
science  are  liable  as  men  of  other  professions  or 
modes  of  training  ?  It  is  impossible  to  sum- 
mon the  whole  profession  to  prove  this.  It  is 
inadmissible  for  one  to  testify  as  to  the  opinions 
of  others.  There  is  no  supreme  court  among 
experts  by  which  conflicting  views  can  be  recon- 
ciled and  an  authoritative  judgment  pronounced. 
There  is  no  power  by  wdiich  the  testifying  ex- 
pert, who  assumes  a  semi-judicial  post,  can  be 


14  field's  medico-legal  guide. 

made  to  accept  judicial  responsibilities — can  be 
made  to  hear  counsel  to  instruct  him  on  both 
sides  of  each  contested  point  of  psychology  ; 
can  be  made  to  feel  that  he  is  bound  to  testify 
to  the  views  of  his  whole  profession.  Hence, 
when  the  trial  conies  on,  the  expert  who  is 
selected  because  he  holds  views  which  the  great 
body  of  his  profession  rejects,  tcstilies  often 
alone,  or  with  but  slight  and  inadequate  correc- 
tion. Hence  it  is  that  high  medical  authority 
has  called  for  the  abandonment  of  the  present 
system  of  '  voluntary '  experts,  and  the  es- 
tablishment of  a  government  board,  as  is  the 
case  in  Germany.  Hence,  also,  after  one  con- 
spicuous  instance  of  failure  of  justice  from  this 
cause  —  that  in  the  case  of  Mr.  Windom,  in 
1866  —  the  feeling  was  so  strong  of  the  mischief 
done  by  crowding  cases  with  incompetent  or  ex- 
travagant experts  to  the  exclusion  of  the  sober 
and  authoritative,  that  the  Lord  Chancellor  pro- 
posed in  the  House  of  Lords,  though  without 
pressing  the  proposition  to  a  vote,  to  exclude 
such  testimony  altogether  in  commissions  of  lu- 
nacy, except  so  far  as  it  is  based  on  facts  within 
the   personal   knowledge   of  the  witnesses  :  '^   1 


MEDICAL    EXPERT    TESTIMONY.  15 

Whart.  &  S.  on  Mecl.  Jur.,  §§  290-295.     See  also 

j)osL  sub.  Mental  Unsoimduess  and  its  Legal  Ke- 
...  • 

lations. 

In  support  of  the  argument  of  tliese  dis- 
tinguished authors  as  to  the  unauthoritative- 
iiess  and  capricious  character  of  medical  expert 
testimony  they  refer  to  three  remarkaJjle  trials 
which  took  place  in  the  United  States  in  1872, 
as  follows  :  Mrs.  E.  G.  Wharton  was  tried  in 
Maryhmd  for  the  poisoning  of  General  Ketchum, 
and  the  experts  called  by  the  State  to  prove 
poison  were  flatly  contradicted  hy  experts  of  at 
least  equal  authority,  called  by  the  defense,  who 
swore  that  neither  in  symptom  nor  autopsy  was 
poison  shown.  A  few  months  later  occurred 
the  trial  of  Stokes  for  the  murder  of  Fisk,  in 
which  experts,  equal  at  least  in  respect  to  num- 
ber, contradicted  each  other  directly  on  the 
question  whether  Fisk  was  killed  by  Stokes  or 
by  the  surgeons  who  endeavored  to  extract 
Stokes'  balls.  And  in  September,  1872,  as  if  to 
exhibit  this  capriciousness  in  the  strongest  relief, 
followed  in  Pennsylvania  the  second  trial  of  Dr. 
Schceppe.  He  was  convicted,  on  a  former  trial, 
on  the  testimou}^  of  a  single  expert,  of  murder 
by  poison  ;  and  it  was  not  till  after  a  delay  of 


16  field's  medico-legal  guide. 

more  than  two  years,  and  then  only  by  legisla- 
tive action,  that  a  new  trial  was  obtained.  Then 
was  it  discovered  that  there  was  nothing  in  the 
prosecution's  case.  The  expert  on  which  it  re- 
lied, though  respectable  and  conscientious,  had 
been  guided  by  tests  which  recent  science  had 
shown  to  be  worthless.  The  court  ordered  the 
acquittal  on  the  ground  that  there  was  not  even 
2i  prima  facie  c'd^Q  oi  the  corpits  delicti.  But  a 
cruel  wrong  had  been  done  to  the  accused  by 
the  first  trial,  as  well  as  a  great  scandal  to  pub- 
lic justice. 

Where  the  question  is  whether  there  is  un- 
soundness of  mind  of  a  person  sufficient  to  avoid 
a  contract  or  will  made  by  him,  it  has  been  held 
improper  to  inquire  of  a  medical  expert  whether 
he  had  sufficient  mental  capacity  to  transact  busi- 
ness or  to  make  a  w411,  as  that  is  a  matter  of  law  : 
Fairchild  v.  Bascom,  35  Vt.  398.  The  proper 
mode  of  proceeding  in  such  a  case  would  seem 
to  be  to  take  the  facts  proved  by  the  expert  witness 
or  others  relating  to  the  subject,  or  admitted,  and 
assuming  them  to  be  true,  inquire  of  the  witness 
if  in  his  judgment  they  were  indicative  of  in- 
anity or  unsoundness  of  mind  :    See  Woodbury 


MEDICAL    EXPERT    TESTIMONY.  17 

V.  Obear,  7  Gniy  (Mass.),  476  ;  People  v.  McCaiin,' 
3  Park.  C.  E.  (N.  Y.)  272  :  R.  v.  Higginsoii,  1 
Car.  &  K.  (Eng.)  129  ;  II.  v.  Francis, T Cox  C. 
C.  (Eng.)  57  ;  R.  v.  Richards,  1  F.  &  F.  (Eng.)  87. 

§  5.  Opinions  of  medical  experts  as  to  sanity  on  hypo- 
thetical cases. 

It  is  admissible  for  an  expert  or  professional 
witness  to  give  an  opinion  of  a  party's  sanity,  on 
a  hypothetical  case,  whether  it  be  for  the  purpose 
of  determining  the  competenc}'^  of  the  party  to 
contract  or  to  make  a  will,  or  his  liability  for 
crime.  And  he  may  be  interrogated  as  to  his 
opinion  of  certain  designated  facts  presented  in  a 
case,  snpposing  them  to  be  true  :  United  States 
V.  McGkie,  1  Curtis  (U.  S.  C.  C),  1  ;  Fairchild 
V.  Bascomb,  35  Vt.  398  ;  Negro  Jerry  v.  Town- 
shend,  9  Md.  145  ;  State  v.  Windsor,  5  Har. 
(Del.)  512  ;  Davis  v.  State,  35  Ind.  496  ;  State 
V.  Kilingler,  46  Mo.  224  ;  McAlister  ?;.  State,  17 
Ala.  434  ;   Wetherbee  v.  Wetherbee,  38  Vt.  454. 

But  counsel  are  limited  in  propounding  ques- 
tions to  the  case  as  presented  by  the  evidence  : 
State  V.  Stokeley,  16  Minn.  282.  Hence,  while 
medical  experts  may  give  their  opinions  in  cases 
where  the  facts  are  not  disputed,   such  experts 


18  field's  medico-legal  guide. 

are  coiifiiied,  where  there  is  a  conflict  of  testi- 
mony, to  answers  to  a  hypothetical  case  :  1 
Whart.  C.  L.  (7th  ed.),  §  50  d ;  Wilkinson  v. 
Mosely,  30  Ala.  562  ;  Commonwealths.  Rogers, 
7  Met  (Mass.)  500. 

In  the  case  last  cited  will  be  found,  in  the  able 
opinion  of  Chief  Justice  Shaw,  a  clear  and  suc- 
cinct statement  and  exposition  of  the  hiw  on 
this  subject,  as  follows  :  "The  opinions  of  pro- 
fessional men  on  a  question  of  this  description 
are  competent  evidence,  and  in  many  cases  are 
entitled  to  great  weight  and  respect.  The  rule 
of  law  on  which  this  proof  of  the  opinion  of 
of  w^itnesses  ^\ho  knew  nothing  of  the  actual 
facts  of  the  case  is  founded,  is  not  peculiar  to 
medical  testimony,  but  is,  as  a  general  rule, 
ap]:)licable  to  all  cases  where  the  question  is  one 
depending  on  skill  and  science  in  any  particular 
department.  In  general  it  is  the  opinion  of  the 
jury  which  is  to  govern,  and  this  is  to  be  formed 
upon  the  proof  of  facts  laid  before  them.  But 
some  questions  lie  beyond  the  scope  of  the  ob- 
servation and  experience  of  men  in  general,  but 
are  quite  within  the  observation  and  experience 
of  those  whose  peculiar  pursuits  and  profession 


MEDICAL    EXPERT    TESTIMONY.  19 

have  brought  that  class  of  facts  frequently  and 
habitually  under  their  consideration.  Ship- 
masters and  seamen  have  peculiar  means  of  ac- 
quiring knowledge  and  experience  in  whatever 
relates  to  seamanship  and  nautical  skill.  When, 
therefore,  a  question  arises  in  a  court  of  justice 
upon  the  subject,  and  certain  facts  are  proved  by 
other  witnesses,  a  shipmaster  may  be  asked  his 
opinion  as  to  the  character  of  such  facts.  The 
same  is  true  in  regard  to  any  question  of  science, 
because  persons  conversant  with  such  science 
have  peculiar  means,  from  a  larger  and  more 
exact  observation,  and  long  experience  in  such 
department  of  science,  of  drawing  correct  infer- 
ences from  certain  facts,  either  observed  by 
themselves  or  testified  to  by  other  witnesses.  A 
familiar  instance  of  the  application  of  this 
principle  occurs  very  often  in  cases  of  homi- 
cide, when,  upon  certain  facts  being  testified 
to  by  other  witnesses,  medical  persons  are  asked 
whether,  in  their  opinion,  a  particular  wound 
pescribed  would  be  an  adequate  cause,  or  whether 
such  a  wound  was,  in  their  opinion,  the  actual 
cause  of  death  in  the  particular  case.  Such 
question  is  commonly  asked  without  objection  ; 


20  field's  medico-legal  guide. 

and  the  judicial  proof  of  the  fact  of  killing  often 
depends  wholly  or  mainly  upon  such  testing  of 
opinion.  It  is  upon  this  ground  that  the  opinion 
of  witnesses  who  have  long  been  conversant  with 
insanity  in  its  various  forms,  and  who  have  had 
the  care  juid  superintendence  of  insane  persons, 
are  received  as  competent  evidence,  even  though 
they  have  not  had  opportunity  to  examine  the 
particular  patient,  and  observe  the  symptoms 
and  indications  of  disease  at  the  time  of  its  sup- 
posed existence.  It  is  designed  to  aid  the  judg- 
ment of  the  jury  in  regard  to  the  influence  and 
effect  of  certain  facts  which  lie  out  of  the  obser- 
vation and  experience  of  persons  in  general. 
And  such  opinions,  when  they  come  from  persons 
of  great  experience,  and  in  whose  correctness 
and  sobriety  of  judgment  just  confidence  can  be 
had,  are  of  great  weight,  and  deserve  the  respect- 
ful consideration  of  a  jury.  But  the  opinion  of 
a  medical  man  of  small  experience,  or  one  who 
has  crude  and  visionary  notions,  or  who  has  some 
favorite  theory  to  support,  is  entitled  to  very 
little  consideration.  The  value  of  such  testi- 
mony will  depend  mainly  upon  the  experience, 
fidelity,  and  impartiality  of  the  witness  who  gives 


MEDICAL    EXPERT    TESTIMONY.  21 

it.  One  caution  in  regai'd  to  this  point  it  is 
proper  to  give.  Even  where  the  medical  or 
other  professional  witnesses  have  attended  the 
whole  trial,  and  heard  the  testimony  of  the  other 
witnesses  as  to  the  facts  and  circumstances  of  the 
case,  they  arc  not  to  judge  of  the  credit  of  the 
Avitnesses,  or  of  the  truth  of  the  facts  testified  to 
by  others.  It  is  for  the  jury  to  decide  whether 
such  facts  are  satisfactorily  proved.  And  the 
proper  question  to  put  to  the  professional  wit- 
nesses is  this  :  If  the  symptoms  and  indications 
testified  to  by  other  witnesses  are  proved,  and  if 
the  jury  are  satisfied  of  the  truth  of  them, 
whether  in  their  [the  witnesses']  opinion  the  party 
was  insane,  and  what  was  tlie  nature  and  char- 
acter of  that  insanity  ;  what  state  of  mind  did 
they  indicate ;  and  what  the}^  would  expect 
W(fuld  be  the  conduct  of  such  a  person  in  any 
supposed  circumstances." 

In  treating  the  question  of  evidence  relating 
to  the  sanity  of  a  testator,  Mr.  Abbott,  in  his 
valuable  treatise  on  Trial  Evidence,  has  furnished 
a  very  concise  statement  of  the  law  relating  to 
opinions  as  to  mental  soundness  or  unsoundness 
in   relation  to  capacity  to  make  a  will ;   and  the 


22  field's  medico-legal  guide. 

general  principle  would  be  the  same,  whatever 
the  object  of  the  inquiry  may  be.  He  says  :  "An 
expert  may  testify  directly  as  to  mental  capacit}'^ 
in  either  of  three  ways  : 

"1.  If  he  had  adequate  opportunities  of  per- 
sonal examination  of  the  testator,  he  may  state 
his  opinion  ])ositively,  based  upon  his  personal 
knowledge  of  the  facts,  but  not  upon  hearsay 
nor  upon  conflicting  testimony  in  the  cause. 

"  2.  An  expert  who  has  heard  all  the  testimony 
adduced  upon  the  trial  bearing  on  the  question, 
ma}^,  if  it  is  not  conflicting,  give  his  opinion  on 
the  question,  what  the  facts  sworn  to,  if  true, 
would  indicate  as  to  the  mental  condition. 

"  3.  An  expert  maybe  asked  what  a  supposed 
state  of  facts,  put  to  him  h^'pothetically,  but 
corresponding  in  details  to  the  facts  already  in 
evidence,  would  indicate  as  to  mental  condition. 
When  the  evidence  involves  conflict,  the  opinion, 
if  not  based  wholly  on  personal  examination, 
should  be  drawn  out  by  an  h^'pothetical  ques- 
tion, havino'  reference  to  the  facts  in  evidence 
on  one  side  or  both,  or  on  each  side  separately. 
The  expert  is  not  to  be  substituted  for  the  jury; 
but  so  long  as  the  question  is  framed  according 


MEDICAL    EXPETIT    TESTIMONY.  23 

to  the  principles  here  stiitecl,  it  can  be  no  objec- 
tion to  it  that  the  issue  and  the  other  evidence 
is  such  that  the  question  to  l)e  submitted  to  the 
jury  must  call  for  the  same  answer.  An  expert 
may  also,  within  limits  not  very  well  defined,  be 
asked  ^general  questions  upon  the  laws  of  mental 
disorder,  decay  or  imperfect  development  rele- 
vant to  the  case,  or  upon  the  consistency  with 
each  other  of  alleged  symptoms,  for  the  pur- 
pose of  enhancing  the  qualifications  of  the  coiu't 
or  jury  to  weigh  and  apply  the  evidence  ;  and 
on  cross-examination,  he  may  be  interjt'ogated 
generally  for  the  purpose  of  testing  his  qualifi- 
cations :  "  Abbott's  Tr.  Ev.  116,  117.  See  also,  in 
suppoi't  of  some  of  the  above  propositions,  Wood- 
bury v.  Obear,  7  Gray  (Mass.),  467;  People  v. 
Schanchez,  22  N.  Y.  174  ;  People  v.  Lake,  12 
N.  Y.  358  ;  Com.  v.  Sogers,  7  Met.  (Mass.)  500  ; 
Dexter  v.  Hall,  15  Wall.  (U.  S.)  26. 

It  may  be  observed  that  an  educated  practic- 
ing physician,  who  has  attended  the  party  whose 
mental  soundness  is  the  subject  of  investigation, 
is  a  competent  expert,  though  not  especially  con- 
versant with  insanity  ;  and  in  a  case  of  gradual 
decay  (senile  dementia)  his  opinion  may  be  more 


24  field's  medico-legal  guide. 

valuable  than  that  of  a  specialist  who  is  a  stran- 
ger to  the  party  :  Baxter  v.  Abbott,  7  Gray 
(Mass.),  71.  And  it  is  not  essential  to  a  medical 
man  of  education  and  experience  in  his  profession 
that  he  has  received  a  diploma  in  order  to  make 
him  competent  as  an  expert. 

§  6.  Where  the  opinion  rests  upon  personal  examination 
facts  should  be  stated. 

As  a  general  rule  it  would  be  better  for  the 
medical  expert  to  furnish  the  facts  on  which  his 
opinion  is  founded,  Aviiere  it  rests  upon  examina- 
tion of  the  testator  or  personal  acquaintance,  and 
although  he  may  in  many  cases  have  to  depend 
to  some  extent  upon  the  statements  of  the  patient 
as  to  his  symptoms  and  feelings  in  diagnosing  his 
case,  which  may  become  a  part  of  the  ves  geMce^ 
his  opinion  cannot  properly  rest  upon  infcjrmation 
given  him  by  an  attendant  of  the  patient,  for  such 
communications  would  be  merely  hearsay  and 
incompetent  evidence  :  Heald  v.  Thing,  45  Me. 
396  ;   Wetherbee  v.  Wetherbee,  38  Vt.  454. 

§  7.  Governmental  experts  recommended. 

Drs.  Wharton  and  Stiles,  in  their  valuable 
work  on  Medical   Jurisprudence,    refer   to    the 


MEDICAL   EXPERT    TESTIMONY.  25 

German  system  of  goverimiental  experts,  and 
suggest  that  such  a  sj^stem,  with  some  modifica- 
tions, could  ])Q  adopted  in  this  country.  We 
conclude  this  branch  of  our  subject  by  copying 
these  suggestions  and  the  arguments  in  support 
of  governmental  experts  :  "We  are  all  familiar 
with  army  physicians  and  army  surgeons, 
and  of  su])ordination  in  rank  in  these  officers. 
There  would  be  no  difficulty  in  providing  in 
each  county  for  a  county  physician,  who,  by 
the  tests  of  an  adequate  competitive  examina- 
tion, would  prove  his  general  and  special  com- 
petency for  this  particular  post.  In  addition 
to  the  duties  devolved  upon  him  of  conducting 
post-mortem  examinations,  and  of  pursuing  any 
other  investigations^  that  may  be  require*d  in  a 
litigated  issue,  such  a  physician  might  be  made 
the  arbiter  in  those  mooi:  questions  by  which  the 
law  has  been  kept  in  a  state  of  such  distressing 
incertitude  :  Is  there  such  a  disease  as  moral 
insanity,  or  as  mania  transitoria  f  Can  human 
blood  stains  be  distinguished  after  having  become 
dried  ?  [We  here  interpose  another  question  : 
Can  human  Ijlood  be  distinguished  from  the 
blood  of  some  of  the  inferior  animals  by  micro- 


26  field's  medico-legal  guide. 

scopic  or  other  inspection,  or  by  tests  of  any 
kind  ?J  If  a  question  of  this  kind  arises  on  the 
trial  of  a  cause,  it  would  not  be  inconsistent  with 
the  analosfies  of  the  law  to  refer  it  to  an  official 
expert,  just  in  the  way  that  a  chancellor  sends  a 
question  of  fact  to  be  determined  by  a  master  in 
chancery  or  by  a  common-law  court  and  jury. 
But  if  this  be  done,  it  should  be  done  with  the 
checks  which  attend  the  chancery  system,  which 
has  just  been  noticed.  The  official  physician 
who  acts  as  referee  must  be  placed  under  ju- 
dicial restraints.  He  should  owe  his  appoint- 
ment to  neither  party,  but  to  the  state,  irrespect- 
ive of  any  particular  case.  His  duty  it  should 
be  to  take  testimony,  if  needed  on  the  case, 
and  hear  counsel,  so  that  he  will  be  in  no  danger 
of  hazardinof  one  of  those  rash  and  ififnorant 
opinions  which  have  so  much  disgraced  this 
branch  of  medical  practice.  After  thus  judically 
hearing  of  the  case,  it  should  be  his  further  duty 
to  judicially  certify  his  opinion  to  the  court  by 
whom  the  reference  is  made.  In  proper  cases 
there  might  be  allowed  an  appeal  from  such 
opinions  to  a  supreme  court  of  governmental 
experts  appointed  by  the  state  at  large.    It  may 


MEDICAL    EXPERT    TESTIMONY.  27 

be  said  that  this  may  be  productive  of  occasional 
delay.  This  is  true  ;  but  the  difficulties  thus 
arisino:  would  not  he  so  c^reat  as  those  which 
almost  every  contested  medical  issue  now  in- 
volves, and  which,  in  cases  of  insanity,  have  led 
courts  so  often  to  grant  new  trials  from  sheer 
despair  of  drawing  a  decisive  conclusion  from 
the  jargon  thus  introduced.  Soon,  also,  the  de- 
lays of  appeals  would  be  reduced,  for  certain 
great  cardinal  questions  would  be  settled  beyond 
dispute.  We  should  soon  know  whether  there 
is  such  a  thing  as  moral  insanity,  [The  author 
would  add — if  it  is  among  the  knowal)le  things] 
and  whether  it  is  practicable  to  distinguish  human 
blood  after  the  expiration  of  a  week  from  the  pe- 
riod of  its  drying.  [The  author  would  add, — and 
whether  it  is  possible  to  distinguish  human  blood 
from  the  blood  of  some  inferior  animals  by  micro- 
scopic examination  or  other  tests.]  Settle  a 
few  such  points  as  these,  and  we  relieve  criminal 
justice  of  a  large  part  of  the  uncertainties  by 
which  it  is  now  ])eset,  and  we  will  have  a  series 
ol'  rules  l)y  which  cases  can  be  intelligently,  con- 
sistently and  humanely  conducted.  Nor  will  this 
be  all.     We  will  be  able  to  get  the  judicial  utter- 


28  field's  medico-legal  guide. 

ances  of  science  as  to  vexed  issues  of  fact,  instead 
of  the  interested  arguments  of  experts  who  are 
virtually  employed  as  counsel  by  the  party  call- 
ing them,  or  the  wild  utterances  of  philosophic 
monomaniacs  who  are  called  simply  because  of 
their  absorption  of  some  unique  theory  of  their 
special  conception.  Such  men  need  not  be 
silenced.  Experts  as  counsel,  indeed,  will  lind 
a  proper  and  important  office  in  presenting  the 
two  sides  of  the  issue  to  the  expert  who  acts  as 
referee.  But  the  expert  who  fills  this  last  judi- 
cial post  will  be  disembarrassed  of  all  persomd 
relations.  He  will  have  no  client  to  serve,  and 
no  past  partisan  extravagances  to  vindicate.  He 
will  render  his  opinion  as  an  advocate  neither  of 
another  nor  of  himself.  When  he  speaks  he 
will  do  so  judicially,  as  the  representative  of\he 
sense  of  the  special  branch  of  science  wdiich  the 
case  invokes,  governed  by  the  opinion  of  the 
great  body  of  scientists  in  this  relation,  and 
advised  b}'  the  most  recent  investigation.  When 
this  is  done,  we  will  have  expert  evidence  res- 
cued from  the  disrepute  into  which  it  has  now 
fallen,  and  invested  with  its  true  rio'hts  as  the 
expression  of  the  particular  branch  of  science  for 


MEDICAL   EXPERT   TESTIMONY.  29 

which  it  speaks  :  "  1  Whart.  &  S.  Med.,  §  1250. 
The  author  of  this  manual  endorses  the  recom- 
mendations of  these  learned  authors,  and  duly 
appreciates  their  arguments  ;  and  he  cannot  re- 
sist copying  the  remarks  of  Dr.  Wharton  in  the 
concluding  paragraph  of  the  first  volume  of  the 
seventh  edition  of  his  valuable  treatise  on  Crim- 
inal Law,  where  he  refers  to  this  subject,  and  his 
former  treatment  of  it,  as  follows:  "Nor  will 
this  be  the  sole  benefit  that  will  result.  Not  only 
w^ill  the  dignity  of  physical  and  psychological 
science  be  vindicated,  l)ut  the  science  of  juris- 
prudence, of  all  others  the  secular  arbiter,  will 
be  able  to  discharge  its  great  ofiice  with  the  pre- 
cision, the  wisdom  and  the  system  which  are 
necessary  to  the  welfare  of  the  community,  but 
which  are  unattainable  when  so  important  a  sub- 
sidiary agency  as  expert  testimony  remains  in 
the  chaos  in  which  it  is  now  plunged  :  "  1  Whart. 
C.  L.,  §  827. 


§  8.  Opinions  of  non-expert  witnesses. 

The  line  between  expert  and  non-expert  wit-, 
iiesses,  and  their  competency   to   give  opinions 


30  field's  medico -legal  guide. 

as  evidence,  is  not  always  clearly  distinguish- 
able. In  respect  to  insanity  it  may  be  affirmed 
as  a  general  rule  that  non-experts  cannot  give 
their  opinions.  But  this  cannot  be  affirmed  as  a 
miiversal  rnle  :  See  post^  §  9.  In  respect  to 
other  matters  one  who  is  not  strictly  an  expert 
may  sometimes  give  an  opinion,  as  where  it 
relates  to  the  value  of  property,  the  rapidity 
of  locomotion,  and  the  like  :  See  ante,  §  3  ; 
State  ^.Knight,  43  Me.  11;  Fairchild  ^;.  Bas- 
comb,  35  Vt.  398  ;  Bierce  v.  Stoking,  11  Gray 
(Mass.),  174  ;  State  v.  Eeddick,  7  Kan.  106  ; 
Hardy  v.  Merrill,  bQ  N.  H.  227  ;  22  Am.  Kep. 
441  ;  2Dost,  §  9. 


§  9,  Distinction  between  e3j;pert  and  common  witnesses. 

On  this  subject  Mr.  Wharton  observes  :  "A 
wdtness  who  had  opportunities  of  observing  a 
defendant  whose  insanity  is  under  investigation, 
may,  after  stating  facts  within  such  observation, 
be,  as  a  general  rule,  asked  whether,  from  the 
defendant's  general  appearance  and  conversation, 
he  was  at  the  time  of  the  observation  of  sound 
mind.     But  a  non-professional  witness  will  not 


MEDICAL    EXPERT    TESTIMONY.  31 

be  permitted  to  give  mere  opinions,  discon- 
nected from  the  facts  on  which  such  opinions 
are  based  : ''  1  Whart.  C.  L.  (7th  ed.),  §  45. 
See  also  Hardy  v.  Merrill,  supra;  Com.  v. 
Sturtevant,  117  Mass.  122  ;   19  Am.  Rep.  401. 

As  a  general  rule,  non-experts  are  confined  to 
a  mere-  statement  of  facts  :  Com.  v.  Wilson,  1 
Gray  (Mass.),  337  ;  Caleb  v.  State,  39  Miss. 
722 ;  Gehrke  v.  State,  13  Tex.  568  ;  Clapp  v. 
FuUerton,  34  N.  Y.  190  ;  Real  v.  People,  42 
N.  Y.  270.  And  they  cannot  give  an  opinion 
upon  a  hypothetical  statement  of  facts  :  State  v. 
Klinger,  46  Mo.  228  ;  Farrell  v,  Brendan,  32 
Mo.  328  ;  Boardman  v.  Woodman,  47  N.  H. 
120  ;  Dunham's  Appeal,  27  Cow.  192  ;  Weems 
V.  Weems,  19  Md.  334  ;  Eckert  v.  Flowry,  43 
Pa.  St.  49. 

Medical  men  who  are  possessed  of  medical 
skill  are  allowed  to  testify  as  experts  and  to 
give  opinions  as  to  the  sanity  or  insanity  of  a 
person,  either  from  personal  examination  of  him 
or  based  npon  a  hypothetical  case.  So  those 
who  are  not  medical  men  are  permitted  to  tes- 
tify and  give  their  opinion  under  certain  circum- 
stances.     But    the   manner   of   conducting   the 


32  field's  medico-legal  guide. 

examination,  and  the  facts  from  wlience  the  wit- 
nesses draw  their  inferences  or  conclusions,  are 
essentially  difterent.  The  medical  expei't  gives 
to  the  jiny  the  result  of  his  professional  skill, 
science  and  learning.  His  opinions  aie  brought 
to  their  assistance,  but  they  are  not  conclusive 
upon  the  jury,  and  they  may  give  them  such 
weight  as  they  deem  they  are  entitled  to,  and 
no  more.  If  the  expert  has  been  present  in 
court,  and  has  heard  all  the  evidence,  and  there 
is  no  dispute  about  the  facts,  he  may  then  be 
asked  his  opinion  about  the  whole  matter. 
But  jvhen  the  facts  are  disputed  this  course 
is  inadmissible,  and  the  question  should  be 
stated  hypothetical ly  :  State  v.  Klinger,  46  Mo. 
228. 

If  a  person  is  indicted  for  a  crime,  and  a 
defense  of  insanity  is  set  up,  and  evidence  is  intro- 
duced in  support  of  such  defense,  a  medical  ex- 
pert witness  who  has  heard  all  the  evidence 
may  be  asked  the  following  question:  "You 
have  heard  all  the  evidence  in  the  case  ;  suppos- 
ing the  jury  to  be  satisfied  that  the  facts  and 
circumstances  testified  to  by  other  witnesses  are 
true,  what  is  your  opinion,  as  a  medical  man, 


MEDICAL   EXPERT   TESTIMONY.  33 

of  the  state  of  the  prisoner's  mind  at  the  time  of 
the  commission  of  the  alleo^ed  crime  ?  "  If  the 
witness  should  state  that  the  evidence  indicated 
unsoundness  of  mind,  the  following  question 
would  be  proper  :  "  Was  the  prisoner,  in  your 
opinion,  at  the  time  of  the  doing  of  the  act, 
under  any,  and  what  kind  of,  insanity  or  delu- 
sion ;  and  what  would  you  expect  would  be  the 
conduct  of  a  person  under  such  circumstances  ?  " 
State  V.  Windsor,  5  Harr.  (Del.)  512  ;  Com.  v. 
Rogers,  7  Met.  (Mass.)  500. 

Witnesses  who  are  not  experts  may  be  permit- 
ted to  state  whether  they  regarded  the  defendant 
on  trial  charged  with  a  crime  to  be  insane  at  the 
time  of  the  commission  of  the  alleged  criminal 
act.  But  this  can  only  be  done  in  connection 
with  their  statements  of  particular  conduct, 
appearance  and  expressions  of  the  defendant, 
upon  which  their  opinion  is  based.  They  may 
give  their  opinion,  accompanied*  by  the  facts 
existing  within  their  own  knowledge  and  obser- 
vation, but  they  cannot  be  permitted  to  give  an 
opinion  upon  the  question  whether  a  hypothetical 
set  of  facts  would  or  would  not,  if  true,  be  evi. 
deuce  of  insanity  ;  nor  from  mere  evidence  which 


34  field's  medico-legal  guide. 

they  have  heard  others  detail  :  State  v.  Kliiiger, 
su;prcL  See  also  Farrell  v.  Bremian,  32  Mo.  328; 
Boardman  v.  Woodman,  47  N.  H.  120  ;  Dun- 
ham's Appeal,  27  Conn.  192. 


CHAPTER  III. 

INSANITY    AND    ITS     LEGAL    RELATIONS. 
§  10.  Varieties  of  unsoundness  of  mind. 

That  branch  of  forensic  medichie,  or  medical 
jurisprudence,  which  relates  to  unsoundness  of 
mind  in  its  legal  relations,  is  so  important  to  the 
medical  and  legal  professions,  and  in  respect  to 
both  civil  and  criminal  liabilitj^,  that  the  author 
feels  justified  in  presenting  a  condensed  treat- 
ment of  the  subject  in  this  chapter. 

Unsoundness  of  mind,  or  insanity,  has  been 
distinguished  into  four  varieties,  or  varying  de- 
grees, namely  :  idiocy,  dementia,  mania  and 
monomania  ;  but  a  more  concise  and  perhaps 
accurate  classification  would  be :  amentia,  de- 
mentia and  mania  :  Guy  &  F.  on  Forensic.  Med. 
(5th  ed.)  172,  173.  In  the  mental  conditions 
indicated  by  these  terms  the  person  is  not  gen- 
erally competent  to  make  contracts,  nor  to  dis- 
pose of  his  property  by  gift  or  will,  or  crimi- 
nally responsible  for  his  acts  :  See  Ray's   Med. 


36  field's  medico-legal  guide. 

Jur.  58  ;   Freeman  v.  People,  4   Denio,  10  ;   47 
Am.  Dec.  216  ;   6  Field's  Lawyers' BrMs,  §  409. 

§  11.  Insanity  defined  and  described. 

In  medical  jurisprudence  insanity  lias  been 
defined  as  the  prolonged  departure,  without  any 
adequate  cause,  from  the  states  of  feeling  and 
modes  of  thinking  usual  to  the  individual  in 
health.  "  Of  late  years,"  observes  Dr.  Gooch, 
"  this  Avord  has  been  used  to  designate  all  mental 
impairments  and  deficiencies  formerly  embraced 
in  the  terms  lunacy,  idiocy  and  unsoundness  of 
mind.  Even  to  the  middle  of  the  last  century 
the  law  recognized  only  two  classes  of  persons 
requiring  its  protection  on  the  score  of  mental 
disorder,  viz.  :  lunatics  and  idiots.  The  former 
were  supposed  to  embrace  all  who  had  lost 
the  reason  which  they  once  possessed,  and 
their  disorder  was  called  dementia  accidentalis  ; 
the  latter  those  who  had  never  possessed  any 
reason,  and  this  was  called  dementia  naturalis. 
Lunatics  were  supposed  to  be  much  influenced 
by  the  moon ;  and  another  prevalent  notion 
respecting  them  was  that  in  a  very  large  propor- 
tion there  occurred  lucid  intervals,  when  reason 


INSANITY   AND   ITS   LEGAL   RELATIONS.        37 

shone  out  for  a  while  from  the  cloud  that 
obscured  it,  with  its  natural  brightness.  It  may 
be  remarked,  in  passing,  that  lucid  intervals  are 
far  less  common  than  they  were  once  supposed 
to  be,  and  that  the  restoraticm  is  not  so  complete 
as  the  descriptions  of  the  older  writers  would 
lead  us  to  infer.  In  modern  practice,  the  term 
•lucid  interval' signifies  merely  a  remission  of 
the  disease,  an  abatement  of  the  violence  of  the 
morbid  action,  a  period  of  comparative  calm  ; 
and  the  proof  of  its  recurrence  is  generally  drawn 
from  the  character  of  the  act  in  question.  It  is 
hardly  necessary  to  say  that  this  is  an  unjustifi- 
able use  of  the  term,  which  should  be  confined 
to  the  oenuine  lucid  interval  which  does  occa- 
sionally  occur. 

"  It  began  to  be  found  out  at  last  that  a  large 
class  of  persons  required  the  protection  of  the 
law  who  were  not  idiots,  because  they  had  reason 
once,  nor  lunatics  in  the  ordinary  signification  of 
the  term,  because  they  were  not  violent,  exhibited 
no  very  notable  derangement  of  reason,  were 
independent  of  lunar  influences,  and  had  no  lucid 
intervals.  Tiieir  mental  impairment  consisted  in 
a  loss  of  intellectual  power,  of  interest  in  their 


38  field's  medico-legal  guide. 

usual  pursuits,  of  the  ability  to  comprehend 
their  vehitions  to  persons  and  things.  A  new 
term — unsoundness  of  mind — was  therefore  in- 
troduced to  meet  the  emergency  ;  but  it  has 
been  never  clearly  defined. 

"  The  law  Ivas  never  held  that  all  lunatics  and 
idiots  are  absolved  from  all  responsibility  for 
their  civil  or  criminal  acts.  This  consequence 
was  attributed  only  to  the  severest  grades  of 
these  affections, — to  lunatics  who  have  no  more 
understandino^  than  the  brute,  and  to  idiots  who 
cannot  ''  number  twenty  pence  nor  tell  how  old 
they  are."  Theoretically  the  law  has  changed  but 
little  even  to  the  present  day,  but  practically  it 
exhibits  considerable  improvement ;  that  is,  while 
the  general  doctrine  remains  unchanged,  it  is 
qualified,  in  one  way  and  another,  by  the  courts, 
so  as  to  produce  less  practical  injustice. 

"  Insanity  implies  the  presence  of  disease  or  con- 
genital defect  in  the  brain,  and  although  it  may 
be  accompanied  by  disease  in  other  organs,  the 
cerebral  aflection  is  always  sujDposed  to  be  pri- 
mary and  ]3redominant.  It  is  to  be  borne  in 
mind,  however,  that  bodily  diseases  may  be  ac- 
companied, in  some  stage  of  their  progress,  by 


INSANITY   AND   ITS    LEGAL   KELATIONS.         39 

mental  disorder,  which  may  affect  the  legal  rela- 
tions of  the  patient. 

"  To  give  a  definition  of  insanity  not  congenital, 
or,  in  other  words,  to  indicate  its  essential  ele- 
ment, the  present  state  of  our  knowledge  does 
not  permit.  Most  of  the  attempts  to  define  in- 
sanity are  sententious  descriptions  of  the  disease 
rather  than  proper  definitions.  For  all  practical 
purposes,  however,  a  definition  is  unnecessary, 
because  the  real  question  at  issue  always  is,  not 
what  constitutes  insanity  in  general,  but  wherein 
consists  the  insanity  of  this  or  that  individual. 
Neither  sanity  nor  insanity  can  be  regarded  as  an 
entirety  to  be  handled  and  described,  but  rather 
as  a  condition  to  be  considered  in  reference  to 
other  conditions.  Men  vary  in  the  character  of 
their  mental  manifestations  insomuch  that  con- 
/luct  and  conversations  perfectly  proper  aud 
natural  in  one  might  in  another,  differently  con- 
stituted, be  indicative  of  insanity.  In  deter- 
mining, therefore,  the  mental  condition  of  a 
person,  he  must  not  be  judged  by  any  arbitrary 
standard  of  sanity  or  insanity,  nor  compared 
with  other  persons  unquestionably  sane  or  insane. 
He  can  properly  be  compared  only  with  himself. 


40  field's  medico-legal  guide. 

li  When  a  person,  without  any  adequate  cause, 
adopts  notions  he  once  regarded  as  absurd,  or 
indulges  in  conduct  opposed  to  all  his  former 
habits  and  principles,  or  changes  completely  his 
ordinary  temper,  manners  and  dispositions, — the 
man  of  practical  sense  indulging  in  speculative 
theories  and  projects ;  the  miser  becoming  a 
spendthrift  and  the  spendthrift  a  miser ;  the 
staid,  quiet,  unobtrusive  citizen  becoming  noisy, 
restless  and  boisterous ;  the  gay  and  joyous 
becoming  dull  and  disconsolate  even  to  the  verge 
of  despair  ;  the  careful,  cautious  man  of  business 
plunging  into  hazardous  schemes  of  speculation  ; 
the  discreet  and  pious  becoming  shamefully 
reckless  and  profligate, —  no  stronger  proof  of 
insanity  can  be  had.  And  yej;  not  one  of  these 
traits,  in  and  by  itself  alone,  disconnected  from 
the  natural  traits  of  character,  could  be  regarded 
as  conclusive  proof  of  insanity.  In  accordance 
with  this  fact  the  principle  has  been  laid  down, 
with  the  sanction  of  the  highest  legal  and  medi- 
cal authority,  that  it  is  the  prolonged  departure, 
without  any  adequate  cause,  from  states  of  feel- 
ing and  modes  of  thinking  usual  to  the  individ- 
ual when  in  health,  which  is  the  essential  feature 


INSANITY   AND   ITS   LEGAL   RELATIONS.        41 

of  insanity  :  "  43  Lond.  Qiuut.  Rev.  355.  See 
Comb  on  Ment.  Dening.  196  ;  Medway  v.  Croft, 
3  Curt.  Eccl.  R.  (Eng.)  671. 

§  12.  Amentia ;  what  it  embraces. 

Amentia  embraces  the  forms  of  unsoundness 
of  mind  known  as  idiocy,  imbecility  and  cre- 
tinism. Idiocy  is  a  form  of  unsoundness  of  mind, 
resulting  either  from  congenital  defect,  or  some 
obstacle  to  the  development  of  the  faculties  of 
mind  in  infancy.  But  idiocy  has  its  degrees,  like 
other  forms  of  imsoundness  of  mind.  Usually 
a  total  idiot  is  a  person  who  has  been  without 
understanding  from  his  nativity,  and  wdiom  the 
law,  therefore,  presumes  never  likely  to  attain 
any  :  6  Field's  Lawyers'  Briefs,  §  410  ;  Shelf,  on 
Lunacy,  2. 

§  13.  Imbecility  defined ;  a  mental  deficiency. 

Imbecility,  in  medical  jurisprudence,  has  been 
defined  as  a  form  of  mental  deficiency,  either  con- 
genital or  resulting  from  an  obstacle  to  the 
development  of  the  faculties  supervening  in- 
fancy ;  and  it  is  substantially  the  same  as 
Idiocy  :    Id. 


42  field's  medico-legal  guide. 

§  14.  Cretinism. 

Cretinism  is  a  form  of  idiocy  which  exists  in 
some  parts  of  Europe,  and  which  prevails  endem- 
ically,  and  is  associated  with  disease  or  defect- 
ive development  of  other  organs  besides  the 
head.  Of  this  it  lias  been  observed  :  "  The  stat- 
ure is  dwarfed,  the  belly  large,  the  legs  small, 
the  head  conical,  the  arch  of  the  palate  high  and 
narrow,  the  teeth  irregular,  the  mouth  large,  the 
lips  thick,  the  complexion  sallow,  the  voice  harsh 
and  shrill,  the  speech  thick  and  indistinct,  the 
eyes  squinting,  the  gait  feeble  and  unsteady,  the 
sexual  powers  weak  or  wanting.  The  best  au- 
thorities represent  this  physical  degeneracy,  with 
co-existing  mental  deficiency,  as  dating,  with  rare 
exceptions,  from  a  period  subsequent  to  birth. 
About  the  fifth  or  sixth  month,  the  bodily  devel- 
opment seems  checked.  The  child  is  weak,  and 
looks  unhealthy,  the  head  is  large,  and  its  bones 
widely  separated,  the  belly  swells  and  the  limbs 
shrink,  teething  goes  on  very  slowly,  and  the 
child  cannot  stand  or  speak  till  its  fifth  or  sixth 
year  :  "  Id. 

In  its  w^orst  phases  the  subject  has  no  intelli- 
gence ;  the  senses  are  wholly  w^anting. 


INSANITY   AND    ITS    LEGAL    KELATIONS.         43 

§  15.  Idiocy. 

Idiocy  is  a  congenital  or  serious  defect  of  all 
the  mental  faculties,  although  admittin2f  of  de- 
grees  :  Guy  &  Fer.  on  Forensic  Med.  (5th  ed.) 
183.  And  idiots  are  incapable  of  committing 
crimes  or  of  making  contracts  or  wills  :  Bacon's 
Arb.  Idiot,  A  ;  4  Bl.  Com.  24,  304  ;  Arch.  Cr. 
L.  4  ;  Shelf,  on  Lunacy,  458  ;  Criminal  Law, 
vol.  2,  Field's  Lawyers'  Briefs,  §  270  tt  seq.  ; 
Contracts,  vol.  2,  Field's  Lawyers'  Briefs,  §  80  ; 
Coll.  on  Lunacy,  573  ;  Rex  v,  Oxford,  9  C.  &  P. 
(Eng.)  525  ;  Rex  v.  Goode,  7  Ad.  &  El.  (Eng.) 
836  ;  Com.  v.  Rogers,  7  Met.  (Mass.)  500  ;  State 
V.  Spencer,  21  N.  J.  L.  196  ;  McAlister  v.  State, 
17  Ala.  434  ;  Guy  &  Fer.  on  Forensic  Med.  (5th 
ed.)  185. 

§  16.  Imbecility. 

The  term  imbecility  is  sometimes  used  to  des- 
ignate a  mental  defect  manifesting  itself  in  in- 
fancy, as  distinguished  from  that  which  is  con- 
genital. Of  this  unsoundness  of  mind  it  has  been 
said  :  "  Idiocy  and  imbecility  ought  perhaps  to 
be  equally  characterized  as  congenital  defects,  of 
which  the  more  marked  (idiocy)  reveals  itself 
soonest,  while  imbecility  is  not  recognized    till 


44  field's  medico-legal  guide. 

the  faculties  have  been  tested  by  education  and 
found  wanting.  It  is  obvious,  too,  that  no  sharp 
lines  of  distinction  can  be  drawn  between  the  idiot 
and  the  imbecile,  for  the  fainter  shades  of  im- 
becility pass  into  the  lighter  tints  of  idiocy.  But 
the  possession  by  the  imbecile  of  the  faculty  of 
speech,  as  distinguished  from  the  parrot-like 
utterances  of  a  few  words  which  the  idiot  can 
learn,  is  the  best  line  of  demarkation  which  the 
case  allows  of.  Most  imbeciles  are  intellectually 
as  well  as  morally  deficient.  They  have  a  lim- 
ited power  of  acquiring  or  retaining  knowledge, 
cannot  understand  or  appreciate  the  customs  of 
society  or  laws,  human  or  divine ;  cannot  con- 
trol their  emotions  and  passions.  But  there  is  a 
small  exceptional  class  which  exhibits  intellectual 
deficiency  without  seriously  offending  against 
morality,  and  a  larger  one  combines  the  highest 
intellectual  endowments  with  utter  incapacity  in 
the  conduct  of  life.  There  is,  therefore,  an  in- 
tellectual, a  moral  and  a  general  mania.  .  .  . 
The  form  of  imbecility  most  common,  and  most 
important  in  a  medico-legal  point  of  view,  is 
that  which  afi*ects  the  intellect,  the  moi'als,  and 
the  prudential  conduct  of  life.     Persons  who  ex- 


INSANITY   AND    ITS   LEGAL   RELATIONS.         45 

Mbit  this  threefold  deficiency  profit  by  education, 
so  as  to  form  and  express  simple  ideas,  to  read, 
write,  count,  and  to  become  musicians,  draughts- 
men or  mechanics.  They  may  even  attain  some 
proficiency  in  some  one  branch  of  knowledge,  or 
some  one  accomplishment ;  but  they  clo  not  profit 
by  the  opportunities  afforded  them  in  the  same 
degree  as  their  neighbors.  They  also  present 
great  varieties  of  character.  Some  are  fickle  and 
changeable  and  incapable  of  fixing  their  atten- 
tion, and  others  methodical  and  persevering. 
They  have  no  idea,  or  a  very  imperfect  one,  of 
society,  laws,  morality,  courts  and  trials  ;  and 
though  they  may  have  the  idea  of  property, 
they  have  no  conception  of  the  consequences  of 
theft.  They  may  have  been  taught  to  refrain 
from  injuring  others,  but  they  are  ignorant  of 
what  would  be  done  to  them  if  guilty  of  incen- 
diarism or  murder^  "  Georget's  Sur  la  Folie  ; 
Guy  &  Fer.  on  Forensic  Med.  188. 

§  17.  Question   of  civil   and  criminal  liability  of  imbe- 
ciles considered. 

Questions  as  to  the  competency  of  imbeciles  to 
contract,  of  ability  to  manage  their  own  aff^iirs, 
and   to   make  wills,  and   as   to   their   criminal 


46  field's  medico-legal  guide. 

liability,  frequently  arise.  Whether  they  are 
competent  to  make  a  contract  or  a  will  must 
depend  upon  the  degree  of  mental  ability  and 
understanding  which  they  possess.  And  the 
same  may  be  said  of  their  criminal  responsi- 
bility. 

For  any  process  of  I'easoning,  or  any  general 
observation  or  abstract  ideas,  total  imbeciles  are 
incompetent  ;  bat  the  affective  faculties  are 
frequently  unusually  active,  particularly  those 
which  lead  to  evil  habits,  as  thievino-  incendi- 
arism,  drunkenness,  homicide  and  assaults  upon 
women.  These  defects  and  inclinations  vary  in 
degree  in  different  imbeciles,  some  being  hardly 
distinguishable  at  first  sight  from  ordinary  men 
of  feeble  endowments,  while  others  encroach 
upon  the  line  which  separates  them  from  idiocy  : 
6  Field's  Lawyers'  Briefs,  §  414. 

§  18.  Imbecility  as  an  excuse  in  criminal  cases. 

In  criminal  cases  the  responsibility  of  imbe- 
ciles depends  upon  their  ability  to  distinguish 
betAveen  rio;ht  and  wrono^  in  connection  with  the 
act  in  question,  or  in  case  of  homicide,  upon 
the  understanding  that  they  were  '^committing 


INSANITY    AND    ITS   LEGAL    EELATIONS.        47 

an  offense  aoffiinst  God  and  nature/'  or  whether 
they  are  deprived  of  imderritauding  and  memory  : 
See  Criminal  Law,  vol.  2,  Field's  Lawyers' 
Briefs,  §  271  ;  Com.  v.  Rogers,  7  Met.  (Mass.) 
500  ;  41  Am.  Dec.  458. 

§  19.  Moral  imbeciles. 

In  respect  to  moral  imbeciles  it  has  been  ob- 
served that  they  are  unable  to  appreciate  fully 
the  distinction  between  right  and  wrong,  and 
according  to  their  several  opportunities  and 
tastes  they  indulge  in  mischief  as  if  by  an  in- 
stinct of  their  nature.  To  vice  and  crime  they 
have  an  irresistible  proclivity,  though  able  to 
discourse  on  the  beauties  of  virtue  and  the 
claims  of  moral  obliofation.  When  yonns^,  mauv 
of  them  manifest  a  cruel  and  quarrelsome  dispo- 
sition, which  leads  them  to  torture  brutes  and 
bully  their  companions.  They  set  all  law  and 
admonition  at  defiance,  and  become  a  pest  and  a 
terror  to  the  neighborhood.  It  is  worthy  of 
notice,  because  the  fact  throws  much  light  on 
the  nature  of  this  condition,  that  a  very  large 
proportion  of  this  class  of  persons  labor  under 
some  organic  defect.     They  are  scrofulous,  rick- 


48  field's  medico-legal  guide. 

ety  or  epileptic,  or  if  not  obviously  suffering 
from  these  diseases  themselves,  they  are  born  of 
parents  who  did.  Their  progenitors  may  have 
been  insane,  or  eccentric,  or  highly  nervous  ; 
and  this  morbid  pecuUarity  has  become,  unques- 
tionably, the  efficient  cause  of  the  moral  defect 
under  consideration.  Thus  lamentably  consti- 
tuted, wanting  in  one  of"  the  essential  elements 
of  moral  responsibility,  the}^  are  certainly  not 
fit  objects  of  punishment  ;  for,  though  they  may 
recoo^nize  the  distinction  between  risfht  and 
wrong  in  the  abstract,  yet  they  have  been  de- 
nied by  nature  those  faculties  which  prompt 
men  more  happily  endowed  to  pursue  the  one 
and  avoid  the  other  :  Ray's  Med.  Jur.  112-130. 

Such  humane  and  philosophical  views  have 
not,  however,  received  much  favor  from  the 
courts  or  authors,  as  we  have  already  noticed. 

In  his  legal  relations  and  responsibilities  the 
total  imbecile  is  like  the  idiot,  unable  to  bind 
himself  by  contract,  or  make  a  will,  and  is  not 
criminally  responsible  for  his  acts.  But  as  there 
are  varying  degrees  of  imbecility,  the  compe- 
tency and  responsibility  of  the  imbecile  may 
become  the   subject   of   legal    inquiry,  and  his 


INSANITY   AND    ITS    LEGAL    EELATIONS.        49 

responsibility  will  depend  upon  his  knowledge 
and  mental  abilit}-  to  understand  the  nature  of 
the  obligation,  or  to  comprehend  the  character 
of  the  civil  or  criminal  act.  In  this  respect  the 
liability  would  be  the  same  as  in  case  of  partial 
insanity  and  dementia,  which  we  have  noticed 
and  shall  hereafter  more  fully  consider.  The 
author  would  say  that  from  his  knowledge  of 
certain  cases  of  moral  imbecility  in  youths,  the 
asylum  would  perhaps  generally  be  the  appro- 
priate place  for  them. 

§  20.  Dementia  distinguished  from  amentia. 

Dementia  is  that  unsoundness  of  mind  which 
is  characterized  by  mental  weakness  and  decrep- 
itude, and  by  total  inability  to  reason  correctly 
or  incorrectly.  It  has  been  distinguished  from 
amentia  as  follows  :  •'  In  idiocy  the  deficiency  is 
congenital,  .in  imbecility  it  shows  itself  in  early 
life,  but  in  dementia  it  supervenes  slowly  or  sud- 
denly in  the  mind  already  fully  developed,  and  in 
childhood,  manhood  or  old  age.  It  differs  also 
from  mania,  for  it  consists  in  exhaustion  and  tor- 
por of  the  faculties,  not  in  violent  and  sustained 
excitement.     In  dementia  we  recognize  an  acute 


50  field's  medico-legal  guide. 

or  jprimary,  and  a  chronic  or  secondary  form. 
The  first  is  rare,  and  consists  in  a  state  of  melan- 
choly or  stupor  ;  the  second  is  very  common, 
and  characterized  by  incoherence,  differing  from 
the  incoherence  of  mania  by  the  absence  of  ex- 
citement. Some  demented  persons,  however, 
are  liable  to  maniacal  paroxysms,  and  maniacs 
to  remissions  of  comparatively  tranquil  incoher- 
ence. There  is  a  senile  dementia,  and  a  form 
of  dementia  associated  with  general  paralysis. 
Dementia  also  has  its  deo^rees  and  stao^es  of  for- 
getfuluess,  irrationality,  incomprehension,  and 
inappetency.  A  patient  suffering  from  dementia, 
as  he  passes  from  bad  to  worse,  first  exhibits  want 
of  memory,  then  loss  of  reasoning  power,  then 
inability  to  comprehend,  and  lastly,  an  abolition 
of  the  common  instincts  and  of  volition  :  "  Guy 
&  F.  on  For.  Med.  (5th  ed.)  194  ;  6  Field's  L. 
B.,§417. 

In  the  progress  of  this  mental  disorder,  the 
mind  usually  dwells  only  on  the  past,  and  the 
thoughts  succeed  one  another  without  any  obvi- 
ous bond  of  association.  Delusions,  if  they 
exist,  are  only  transitory,  and  leave  no  permanent 
impression ;  and  for  everything  recent  the  mind 


INSANITY    AND    ITS    LEGAL   RELATIONS.         51 

is  exceedingly  weak.  Occasionally  it  occurs  in 
an  acute  form  in  young  suljjects,  and  then  only 
is  it  curable.  In  old  men,  in  whom  it  often 
occurs,  it  is  called  senile  dementia^  and  it  indi- 
cates the  breaking  down  of  the  mental  powers 
in  advance  of  the  bodily  decay.  It  is  this  form 
of  dementia  which  usually  gives  rise  to  litiga- 
tion; for  in  others  the  incompetency  is  generally 
too  patent  to  admit  of  controversy.  It  cannot 
be  described  by  any  positive  characters,  because 
it  differs  in  the  different  stages  of  progress,  vary- 
ing from  the  simple  lapse  of  memory  to  complete 
inability  to  recognize  persons  or  things.  It 
sometimes  manifests  itself  in  breaches  of  decorum, 
when  the  mental  infirmity  is  not  so  serious  as 
might  at  first  sight  be  supposed,  as  frequently 
in  such  cases,  if  the  attention  be  aroused  to  a 
matter  in  which  the  person  is  deeply  interested, 
he  will  show  no  lack  of  wonted  vigor  or  acute- 
ness.  In  other  words,  the  mind  may  be  damaged 
superficially,  to  use  a  figure,  when  it  may  be 
sound  at  the  core  ;  so  that,  although  he  may  be 
quite  oblivious  of  names  and  dates,  he  may  com- 
prehend perfectly  well  his  relations  to  others  and 
and  the  interests  in  which  he  is  concerned.     In 


52  field's  medico-legal  guide. 

case  of  senile  dementia,  the  impression  made 
upon  the  minds  of  those  who  have  been  long 
and  most  intimately  acquainted  with  the  subject, 
as  to  his  mental  condition  and  status,  would  be 
better  than  the  impression  made  upon  casual 
observation  :  Id.  ;  see  also  Judge  Redfield  in  3 
Am.  L.  Reg.  (K  S.)  449  ;  2  Phil.  Eccl.  L.  449  ; 
Harrison  v.  Rowan,  3  Wash.  (C.  C.)  580  ;  1  Red. 
on  Wills. 

§  21.  liegal  relations  of  dementia — in  case  of  wills. 

Questions  frequently  raised  respecting  persons 
suffering  from  this  form  of  mental  unsoundness, 
relate  to  the  validity  of  wdlls  made  or  altered 
by  them  ;  and  especially  in  case  of  senile  de- 
mentia. The  question  of  mental  capacity  for 
such  purposes  is  frequently  a  difficult  one  to 
determine,  for  such  persons  vary  greatly  from 
day  to  day,  and  present  themselves  in  different 
lifi^hts  to  different  observers.  Hence  we  have 
conflicting  testimony  and  wide  divergences  of 
opinion,  both  among  skilled  and  unskilled  wit- 
nesses. The  only  general  rule  of  much  practi- 
cal value  in  such  cases  is,  that  competency  must 
be  always  measured,  not  by  any  fancied  stand- 


INSANITY   AND    ITS    LEGAL   RELATIONS.        53 

ard  of  intellect,  but  solely  by  the  requirements 
of  the  act  in  question  :  See  Eay  on  Insanity  (5th 
eel.),  133  ;  Taylor's  Mecl.  Jur.  629  ;  Gilm.  Mecl. 
Jur.  20;  also  Wills,  vol.  5,  Field's  L.  B.,  §  729.  A 
small  and  familiar  matter  would  require  less 
mental  power  than  one  complicated  in  its  details 
and  somewhat  new  to  the  testator's  experience. 
Less  capacity  would  be  necessary  to  distribute 
an  estate  between  a  wife  and  child  than  between 
a  multitude  of  relatives  with  unequal  claims 
upon  the  bounty  of  the  testator. 
-  It  has  been  obseiwed  that  the  legal  principles 
by  which  courts  are  governed  are  not  essen- 
tially difierent,  whether  the  mental  incapacity 
proceed  from  dementia  or  mania.  In  case 
the  question  of  competency  arises  upon  the  con- 
test of  a  will,  if  the  will  coincides  with  the  pre- 
viously expressed  wishes  of  the  testator, — that  is, 
his  wishes  as  expressed  before  any  question  as  to 
his  competence  had  arisen, — and  if  it  recognizes 
the  claims  of  those  who  stood  in  near  relation  ta 
him,  and  shows  no  indication  of  undue  influence, — 
in  short,  if  it  is  a  rational  act,  rationally  done,  it 
will  very  properly  l)e  established,  although  there 
may   have   existed  considerable   impairment  of 


54  field's  medico-legal  guide. 

mind  :  Id.  ;  Jarm.  on  Wills  (5tli  Am.  ed.),  94  ; 
Swinb.  on  Wills,  pt.  2,  §  5  ;  Bird  v.  Bird,  2 
Hagg.  Eccl.  (Eng.)  142  ;  Creely  v,  Ostvander, 
3  Bradf.  (N.  Y.)  107  ;  Crolires  v.  Stark,  64 
Barb.  (N.  Y.)  112  ;  Clark  v.  Fisher,  1  Paige 
(N.  Y.),  171  ;  Van  Alstyne  v.  Hunter,  5  Johns. 
Ch.  (N.  Y.)  148  ■  Daniel  v.  Daniel,  39  Pa.  St. 
191  ;  Higgins  v.  Higgins,  28  Md.  115  ;  Potts  ^;. 
House,  6  Ga.  240  ;  50  Am.  Dec.  329  ;  Yoe  v. 
McCord,  74  III.  33  ;  Carpenter  v.  Calvert,  83 
III.  62;  Lowder  v.  Lowder,  38  Ind.  638; 
Thomas  v.  Slump,  62  Mo.  275 ;  Rutherford  v. 
Morris,  77  111.  397  ;  Thomas  v.  Kyner,  65  Pa. 
St.  368  ;  Terry  v.  Biiffington,  11  Ga.  337  ;  56 
Am.  Dec.  432  ;  Couch  v.  Couch,  7  Ala.  519  ; 
42  Am.  Dec.  602 ;  Rigg  v.  Wilton,  13  III.  15  ; 
54  Am.  Dec.  419  ;  5  Field's  Lawyers'  Briefs,  §§ 
727-730. 

We  shall  hereafter  notice  the  principles  of  the 
law,  in  criminal  cases,  relating  to  unsoundness  of 
mind  generally. 


§  22.  Mania  defined. 

One  of  the  most  common  forms  of  insanity  or 
mental  unsoundness  is  mania,  and  consists  of  in- 


INSANITY    AND    ITS    LEGAL    RELATIONS.         55 

tellectual  aberration,  or  morbid  obliquity,  or 
both  of  these  conditions  :  Bouv.  L.  D.,  Mania. 
The  term  includes  all  forms  of  mental  unsound- 
ness that  are  characterized  by  undue  excitement. 
Mania  has  been  classified  into  three  kinds, 
namely  :  General,  intellectual,  and  moral :  the 
latter  has  also  been  divided  into  general  and  par- 
tial mania  :  Guy  &  Fer.  on  For.  Med.  (5th  ed.) 
197. 

The  term  also  embraces  monomania ;  that  is, 
mania  confined  to  a  certain  point,  or  partial 
mania,  the  understanding  being  sound  in  every 
other  respect.  The  subject  of  mania  involves 
the  consideration  of  delusions  and  hallucinations, 
which  will  be  treated  of  further  on  :  6  Field's 
L.  B.,  §  419. 

§  23.  General  mania  ;  character  of. 

General  mania  affects  the  intellect,  the  emo- 
tions, and  the  passions,  and  throws  the  whole 
mind  into  a  state  of  minoled  excitement  and 
confusion.  It  has  l^een  desisfnated  as  raoins^  in- 
coherence.  The  maniac  either  misapprehends 
the  true  relations  between  persons  and  things,  in 
consequence  of  which  he  adopts  notions  maui- 


56  field's  medico-legal  guide. 

festly  absurd,  and  believes  in  occurrences  that 
never  did  and  never  could  take  place,  or  his 
sentiments,  affections  and  emotions  are  so  per- 
verted, that  whatever  excites  their  activity  is 
^dewed  through  a  distorting  medium,  or,  which 
is  the  most  common  fact,  both  these  conditions 
may  exist  together,  in  which  case  their  relative 
share  in  the  disease  may  differ  in  such  a  degree 
that  one  or  the  other  may  scarcely  be  perceived  : 
Id.  ;  Bouv.  L.  D.,  Mania  ;  Guy  &  F.  on  Foren- 
sic Med.  (5th  ed.)  197,  198  ;  Beck's  Med.  Jur.  , 
(10th  ed.)  705  et  seq. 

§  24.  Intellectual  mania. 

General  intellectual  mania  is  said  to  consist  in 
many  cases  in  a  violent  disturbance  of  all  the  in- 
tellectual faculties,  brought  about  by  the  over- 
excitement  of  some  one  leadins:  emotion  or 
passion.  Mr.  Gu}^  illustrates  this  kind  of  mania 
as  follows:  "A  patient  of  ours,  who,  after  in- 
dulging for  years  in  a  series  of  strange  and  in- 
decent acts,  had  an  attack  of  o^eneral  mania, 
followed  by  brain  softening,  in  which  state  he 
claimed  to  know  all  about  the  human  body,  as 
having  made  it,  to  be  the  Christ,  King  of  Eng- 


INSANITY   AND    ITS    LEGAL   RELATIONS.        57 

land,  and  heir  apparent,  to  have  written  a  uni- 
versal history  in  a  curiously  short  spnce  of  time, 
and  to  be  in  possession  of  untold  wealth  :  "  Guy 
&  F.  on  Forensic  Med.  (5th  ed.)  200. 

§  25.  Partial  mania,  or  monomania. 

The  simplest  form  of  this  disorder  is  where 
the  subject  takes  up  some  one  notion  opposed  to 
common  sense  and  universal  experience.  "  He 
is  secretary  to  the  moon,  the  Crystal  Palace,  a 
grain  of  wheat,  a  goose  pie,  a  pitcher  of  oil,  a 
wolf,  a  dog,  or  a  cat.  In  many  cases  this  single 
delusion  relates  to  or  is  caused  by  some  sensa- 
tion or  disease,  which  the  monomaniac,  like  the 
dreamer,  associates  with  imaginary  accompani- 
ments. Thus  Equirol  tells  us  of  a  woman  who, 
having  hydatids  in  the  womb,  insisted  that  she  was 
pregnant  with  the  devil ;  of  another,  who,  having 
adhesion  of  the  intestines  after  chronic  peritonitis, 
imagined  that  a  regiment  of  soldiers  lay  strug- 
gling and  fighting  in  her  belly  ;  of  a  third,  who, 
•suffering  in  the  same  way,  believed  that  the 
Apostles  and  Evangelists  had  taken  up  their 
abode  in  her  bowels,  and  were  occasionally  vis- 
ited by  the  Pope  and  the  Patriarchs  of  the  Old 


58  field's  medico-legal  guide. 

Testament : "  Guy  &  F.  on  For.  Mecl.  (5th  eel.) 
201.  This  kind  of  munia  embraces  all  delusions 
and  hallucinations,  which  we  will  proceed  to 
consider. 

§  26.  Delusions  and  hallucinations  in  general. 

These  are  common  manifestations  of  partial 
mania.  By  delusions  is  meant  a  firm  belief  in 
something  impossible,  either  in  the  nature  of 
things  or  in  the  circumstances  of  the  case,  or,  if 
possible,  highly  improbable,  and  associated  iu 
the  mind  of  the  patient  with  consequences  that 
have  to  it  only  a  fanciful  relation.  By  halluci- 
nation is  meant  an  impression  supposed  by  the 
patient,  contrary  to  all  proof  of  possibility,  to 
have  beeu  received  through  one  of  the  senses. 
For  instance,  the  belief  that  one  is  the  Pope  of 
Rome  is  a  delusion  ;  the  belief  that  one  hears 
voices  speaking  from  the  walls  of  a  room,  or 
sees  armies  contending  in  the  clouds,  is  halluci- 
nation. The  latter  implies  some  morbid  activity 
of  the  perceptive  powers  ;  the  former  is  a  mis- 
take of  the  intellect  exclusively :  See  Boiiv. 
L.  D.,  Mania,  and  authorities  cited.  We  shall 
notice  hereafter  the  legal  consequences  of  par- 
tial mania  :   6  Field's  Lawyers'  Briefs,  ^423. 


INSANITY    AND    ITS    LEGAL    RELATIONS.         59 
§  27.  Moral  and  effective  mania ;  morbid  impulses. 

Moral  and  effective  mania  is  distinguished  by 
Guy  and  Ferrer  into  two  classes  —  general  and 
partial.  In  criminal  cases  a  test  of  irresponsi- 
bility for  acts  is  mental  delusion.  But  moral 
mania,  it  seems,  may  exist  without  this,  as  in 
case  of  irresistible  tendencies  or  impidses  to  do 
some  wrono^ful  act.  Partial  moral  mania  "  con- 
sists  in  the  intense  activity  of  some  one  passion 
or  propensity,  and  its  pi-edomi nance  or  complete 
mastery  over  every  other.  The  persons  thus 
affected  are  usually  perfectly  conscious  of  their 
condition,  and  either  evince  the  utmost  horror  at 
the  conduct  to  which  their  ruling  ])assion  would 
impel  them,  and  with  difficulty  restrain  them- 
selves, or  they  give  way,  as  if  in  desperation,  to 
the  impulse.  There  is  no  strong  impulse  of  our 
nature  that  may  not  be  thus  placed,  by  morbid 
excitement,  beyond  the  restraint  of  reason  and 
conscience  :  "  Guy  &  F.  on  For.  Med.  (5th  ed.) 
204. 

The  following  forms  of  partial  moral  mania 
have  been  recognized  :  homicidal  mania^  klepto' 
mania^  or  a  propensity  to  theft ;  pyromania,  or 
a  propensity  to  incendiarism  ;    dipsomania^  or 


60  field's  medico-legal  guide. 

an  excessive  craving  for.  intoxicating   liquors; 
suicidal  monomania^  and  puerjieral  mania :  Id. 

§  28.  Homicidal  mania,  or  the  propensity  to  kill. 

In  case  of  a  plea  to  an  indictment  of  insanity 
as  a  defense,  and  the  proof  is  clear  that  the  de- 
fendant at  the  time  was  in  the  condition  of  abso- 
lute amentia,  dementia,  or  general  mania,  the 
court  generally  directs  an  acquittal  ;  and  per- 
haps the  same  practice  should  prevail  where 
mental  unsoundness  in  respect  to  the  particular 
act  is  clearly  shown  to  have  existed  at  the  time 
the  criminal  act  charged  was  committed  :  See 
Collison  on  Lunacy,  573  ;  4  Bl.  Com.  24  ;  Rex 
V.  Oxford,  9  Car.  &  P.  (Eng.)  525  ;  State  v. 
Spencer,  21  K.  J.  L.  196  ;  McAlister  v.  State, 
17  Ala.  434. 

Homicidal  monomania  is  recognized 'by  medi- 
cal authors  as  a  mental  disorder.  It  consists  of 
a  propensity  to  kill  —  to  take  the  life  of  an- 
other—  impelled  by  an  inward,  irresistible  force 
or  necessity,  without  motive  or  provocation. 
The  victim  may  be  a  devoted  wife,  or  an  affec- 
tionate child,  to  whom  the  unfortunate  father  or 
mother  has  been  most  tenderly  attached. 


INSANITY   AND    ITS    LEGAL   RELATIONS.         61 

111  most  of  such  cases  it  has  been  observed 
that  there  has  been  some  derangement  of  health, 
or  some  deviation  from  the  ordinary  physiologi- 
cal condition,  such  as  delivery,  suppression  of 
menstruation,  and  the  like  ;  but  occasionally  no 
incident  of  this  kind  can  be  detected  —  the  pa- 
tient has  been,  apparently,  in  ordinary  con- 
dition, both  bodily  and  mentally.  This  mental 
condition  may  sometimes  be  the  result  of  great 
religious  excitement,  and  a  deluded  belief  that 
some  great  calamity  or  danger  is  impending  over 
a  child  or  wife  who  becomes  the  victim,  and  the 
act  is  done  from  a  belief  that  it  is  necessarv  to 
avoid  a  worse  result. 

The  legal  relations  of  this  unsound  condition 
of  mind  we  have  before  stated,  as  follows  :  To 
constitute  a  defense  [to  a  criminal  charge]  on  the 
ground  of  irresistible  impulse,  it  must  exist  to 
such  an  extent  and  with  such  violence  as  to  ren- 
der it  impossible  for  the  party  to  do  otherwise 
than  to  submit  to  it  :  See  2  Field's  Lawyers' 
Briefs,  §273;  Scott  v.  Com.  4  Met.  (Ky.)  227  ; 
Hoppes'y.  State,  31  111.  385;  Stevens  v.  State,  31 
Ind.  486;  State  v.Felter,  25  la.  67;  Com.  v.  Hos- 
ier, 4  Pa.  St.  266;  Board  v.  State,  30  Miss.  600. 


62  field's  medico-legal  guide. 

In  the  case  last  cited  it  was  observed  :  "In 
order  to  constitute  a  crime,  a  person  nmst  have 
intelligence  and  capacity  enough  to  have  a 
criminal  intent  and  purpose  ;  and  if  his  reason 
and  mental  powers  are  either  so  deficient  that  he 
has  no  will,  no  conscience  or  controlling  mental 
power  ;  or  if,  through  overwhelming  violence  or 
mental  disease,  his  intellectual  power  is,  for  a 
time,  obliterated,  he  is  not  a  responsible  moral 
agent,  and  is  not  responsible  for  criminal  acts." 

To  constitute  a  complete  defense,  insanity,  if 
partial,  as  in  case  of  monomania,  must  be  of 
such  a  degree  as  to  wholly  deprive  the  accused 
of  the  guide  of  reason  in  regard  to  the  act  with 
which  he  is  charged,  and  of  the  knowledge  that 
he  is  doing  wrong  in  committing  it :  State  v. 
Spencer,  21  N.  J.  Law,  196;  1  Whart.  &  S. 
Med.  Jur.,  §§  144,  162,  531,  537  ;  E.  v.  Barton, 
3  Cox  C.  C.  (Eng.)  275  ;  R.  v.  Goode,  7  Ad.  & 
El.  (Eng.)  536  ;  \  v.  Oxford,  9  C.  &  P.  553  ; 
Willis  V.  People,  32  N.  Y.  715  ;  Flanagan  v. 
People,  52  N.  Y.  467.  And  mere  "moral  in- 
sanity,"  where  the  person  is  intellectually  sane, 
will  not  exempt  from  responsibility  :  State  v. 
Lawrence,   57    Me.  574;    Com.    v.    Heath,   11 


INSANITY    AND    ITS    LEGAL    RELATIONS.         63 

Gray  (Mass.),  303  ;  Freeman  v.  People,  4  Deiiio 
(N.  Y.),  10  ;  Shater  v.  People,  2  N.  Y.  199  ; 
Farrei*  v.  State,  2  Ohio  St.  54  ;  Choice  v.  State, 
31  Ga.  424;  People  v.  Coffinaii,  24  Cal.  230; 
United  States  v.  Schultz,  6  McLean,  121  ; 
United  States  v.  Holmes,  1  Cliff.  (U.  S.  C.  C.) 
198  ;  1  Whart.  &  S.  Med.  Jur.,  §  186  et  seq.  ; 
Whart.  on  Ment.  Unsound.  43  ;  State  v.  Spencer, 
21  N.  J.  L.  196  ;  Reg.  v.  Barton,  3  Cox  C.  Cas. 
(Eng.)  275. 

§  29.  Kleptomania,  or  propensity  to  steal. 

The  tendency  or  irresistible  propensity  to 
steal  is  anions:  the  recoo-nized  forms  of  mental 
derangement.  It  is  frequently  manifested  in 
persons  of  irreproachable  life,  and  who  are  in 
easy  and  even  in  opulent  circumstances,  and  by 
habit  and  education  above  all  petty  dishonesty. 
The  articles  stolen  are  frequently,  and  perhaps 
usually,  of  trifling  value,  and  are  put  away  out 
of  sight  as  soon  as  stolen.  This  intellectual  dis- 
ease, or  obliquity,  is  said  to  generally  occur  in 
connection  with  some  pathological  or  other  ab- 
normal condition,  as  a  sequel  of  fever  or  blows 
on  the  head,  of  pregnancy  or  disordered  men- 


64  field's  medigo-legal  guide. 

struation,   and  the  precursor  of  mania  and  or- 
o'auic    disease    of   the   brain  :     See   Whart.    on 

c 

Ment.  Unsoundness,  44. 

§  30.  Disinclination  to  regard  it  as  a  defense. 

There  has  been  mucli  disinclination  of  the 
courts  to  recognize  Mejptomania  as  a  defense  to 
an  act  of  theft.  The  spirit  of  this  feeling  was 
expressed  by  Baron  Alderson,  who  observed  : 
"A  man  might  say  he  picked  a  pocket  from 
some  uncontrollable  impulse ;  and  in  that  case 
the  law  would  have  an  uncontrollable  impulse  to 
punish  him  : "  Reg.  v.  Pate,  Lond.  Times,  July 
12,  1850.  Neither  theoretically  nor  practically  is 
this  form  of  insanity  recognized  as  a  defense  for 
theft.  But  when  the  law  comes  to  reflect  more 
clearly  the  light  of  science,  such  a  defense  will 
not  perhaps  be  regarded  as  a  "  dangerous  inno- 
vation," as  expressed  by  Baron  Parke  :  See  Reg. 
V.  Barton,  3  Cox  C.  Cas.  275  ;  Chit.  Med.  Jur. 
352. 

§31.  Pyromania,  or   a  propensity   to   burn;   and  aidoi- 
mania,  sexual  propensity. 

These  indications  of  unsound  mind  are  recoo'- 
nized  by    medical  authors.     The  latter  is  said 


INSANITY   AND    ITS   LEGAL    RELATIONS.         65 

always  to  occur  in  young  subjects,  and  is  sup- 
posed to  be  connected  with  disordered  menstrua- 
tion, or  that  physical  evolution  which  attends 
the  transition  from  youth  to  manhood.  Of  both, 
the  same  remarks  would  be  applicable  which 
were  made  in  the  last  section  relating  to  klepto- 
mania. Doubts  have  been  expressed  as  to  the 
maniacal  character  of  these  singular  impulses, 
which  have  generally  been  attributed  to  deprav- 
ity of  character  rather  than  disease.  Nothing, 
however,  seems  better  established  by  abundance 
of  cases  related  by  distinguished  observers.  In 
spite  of  all  metaphysical  cavils,  there  are  the 
cases  on  record  ;  and  there  they  will  remain,  to 
be  increased  in  number  by  every  year's  obser- 
vation. 

§  32.  These  have  not  received  much  favor  as  a  defense. 

Kleptomania,  pyromania  and  idoimania,  in 
what  may  be  called  their  milder  forms,  have  not 
received  much  favor  as  a  defense  for  the  acts 
which  they  suggest.  But  juries  have  been  loath 
to  convict  a  man  for  a  petty  theft  who,  toward 
the  close  of  an  exemplary  life,  has  been  detected 
in    stealing   things  of  insignificant  value,  or  a 


66  field's  medico-legal  guide. 

woman  who,  when  pregnant,  and  only  then,  for- 
gets entirely  the  distinctions  of  meum  and  tuum, 
though  at  all  other  times  a  model  of  moral  pro- 
priety :  Whart.  on  Ment.  Unsound.  43. 

Whatever  may  be  the  theory  of  the  law  as  to 
the  milder  forms  of  these  kinds  of  permanent 
or  temporary  monomania  as  a  defense  in  crimi- 
nal cases,  there  may  be  extreme  manifestations 
of  it,  amounting  to  "irresistible  impulse,"  or 
"uncontrollable  tendency";  and  in  such  cases 
the  mantle  of  the  law  would  cover  and  protect 
the  monomaniac :  Ante^  §  29.  And  if  a  youth 
should  set  fire  to  a  buildino;  under  an  "  uncou- 
troUable  impulse,"  shall  it  be  said  that  the  law 
would  have  an  "  uncontrollable  impulse  to  pun- 
ish him  for  it  ?  " 

§  33.  Alcohol  I  its  uses  and  effects. 

Alcohol  is  the  product  of  a  fermentation  in- 
duced by  the  action  of  a  microscopic  fungus, 
yeast,  upon  certain  kinds  of  sugar,  especially 
grape  sugar,  and  al;:0  upon  that  derived  from 
starch  of  any  description,  and  in  the  same  man- 
ner upon  milk  sugar.  In  such  cases  a  peculiar 
metamorphosis  takes  place,  by  which  the  alcohol 


INSANITY    AND    ITS    LEGAL    RELATIONS.         67 

and  carbonic  acid  are  produced  in  considerable 
amount,  togetiier  with  very  minute  quantities  of 
succinic  acid,  glycerine  and  other  bodies  :  Quain's 
Med.  Die.  (8th  Am.  ed.)  24.  Alcohol  may  also 
be  produced  synthetically  from  its  elements,  car- 
bon, hydrogen  and  oxygen.  Alcohol  is  a  pow- 
erful antiseptic^  })rol)a!)ly  from  the  fact  that  it  is 
capable,  when  diluted,  of  preventing  the  devel- 
opment of  septic  germs,  such  as  vibrios  and  bac- 
teria, as  well  as  paralyzing  the  activity  of  those 
already  formed  :   6  Field's  L.  B.,  §  425. 

§  34.  The  psychological  effects  of  alcohol. 

On  this  subject  Dr.  Binz  observes  :  "There 
is  scarcely  any  therapeutical  agent,  the  internal 
effects  of  which  vary  so  much  according  to  the 
dose  given.  In  small  quantities,  and  slightl}' 
diluted  with  water,  alcohol  promotes  the  func- 
tional activity  of  the  stomach,  the  heart  and  the 
brain  ;  whilst  a  large  quantity,  largely  diluted, 
exerts  but  a  limited  influence  upon  these  organs. 
If,  however,  the  dose  of  alcohol  be  often  repeated, 
it  is  readily  assimilated,  and  becoming  diffused 
through  the  svstem,  undei-jroes  combustion  w^ithin 
the  tissues  of  the  body,  imparts  warmth  to  them, 


6S  field's  medico-legal  guide. 

and  yields  vital  force  for  the  performance  of  their 
various  functions.  Simultaneous  with  this  con- 
sumption of  alcohol,  the  body  of  the  consumer  is 
often  observed  to  o^row  fat,  a  circumstance  due 
to  simple  accumulation,  the  fat  furnished  by  the 
food  remaining  unburned  in  the  tissues,  because 
the  more  combustible  alcohol  furnishes  the 
warmth  required,  leaving  no  necessity  for  the 
adipose  hydro-carbon  to  be  used  for  that  pur- 
pose. .  .  .  The  symptoms  of  intoxication 
produced  by  large  doses  of  alcohol  are  sufficiently 
well  known.  When  the  abnormal  condition  of 
excitement  in  the  brain,  induced  by  this  stimu- 
lant, has  been  kept  up,  almost  without  intermis- 
sion, for  a  length  of  time,  or  when  it  is  suddenly 
withdrawn  after  the  organ  has  been  long  sub- 
jected to  it,  the  disturbance  brought  about  is  so 
great  and  persistent  as  to  result  in  a  complete 
overthrow  of  the  reasoning  faculties,  and  the 
condition  known  as  delirium  tremens  ensues. 
There  can  be  no  doubt  but  that  a 
healthy  organism,  supplied  with  sufficient  food, 
is  capable  of  performing  all  its  regular  functions 
without  requiring  any  specially  combustible  ma- 
terial for  the  generation  of  heat  and  the  develop- 


INSANITY   AND    ITS   LEGAL   RELATIONS.         69 

meiit  of  vital  force.  But  the  case  assumes  a  dif- 
ferent aspect  when  in  sickness  it  transpires  that, 
while  the  metamorphosis  of  tissue  goes  on  with 
its  usual  activity  or  with  increased  energy,  as 
happens  in  many  diseases,  the  stomach,  refus- 
ing to  accept  or  digest  ordinary  food,  fails  to 
supply  material  to  compensate  for  this  waste. 
Here  it  is,  then,  that  a  material  which  can  ])e 
most  readily  assimilated  by  the  system,  and 
which  by  its  superior  combustibility  spares  the 
sacrifice  of  the  animal  tissue,  is  especially  called 
for ;  and  such  material  we  have  in  alcohol : 
Quain's  Med.  Die.  (6th  Am.  ed.)  24-26. 

§  35.  Alcoholism  defined. 

This  term  is  applied  to  the  diverse  pathological 
processes  and  attendant  symptoms  caused  by  the 
excessive  ingestion  of  alcoholic  beverages.  These 
are  very  different  if  a  large  quantity  is  consumed 
at  once,  or  at  short  intervals',  or  if  small  quan- 
tities are  taken  ha1)itually  ;  hence  they  are  sub- 
divided into  those  due  to  acute  and  chronic 
alcoholism.  To  the  acute  forms  of  alcoholic  poi- 
soning belong  the  acute  catarrh  of  the  alimentary 
mucous   membrane,   rapid   coma,  some  cases  of 


70  field's  medicolegal  guide. 

deliriaiu  tremens^  and  certain  special  forms  of 
acute  insanit}'  ;  whilst  to  the  chronic  class  are 
referred  the  prolonged  congestions,  the  fatty  and 
connective  tissue  defeneration  of  the  various 
oro'ans  and  tissues,  most  cases  of  delirium  tremens, 
nervous  affections  of  slow  onset  and  course,  and 
cachexia,  which  in  vaiying  com] )i nations  attend 
a  continuously  immoderate  consumption  of  alco- 
hol:  Id. 

The  followino^  frao-ment  from  an  instructive 
paper,  by  Dr.  John  Cnrnow,  may  be  found  in 
Quain's  Med.  Die.  (8th  Am.  ed.)  29.  He  says  : 
"  The  forms  of  insanity  caused  by  alcoholism  are 
acute  mania  and  melancholia,  chronic  dementia, 
and  onomania.  In  the  first,  homicidal  impulses, 
and  in  the  second,  strong  suicidal  tendencies,  due 
to  actual  delusions  and  not  to  mere  passive  ter- 
rors, are  added  to  the  other  signs  of  delirium 
tremens.  Onomania  is  a  peculiar  form  of  in- 
sanity, in  which  the  patient  breaks  out  into  par- 
ox^'sms  of  alcoholic  excess,  attended  with  violent, 
strange,  or  even  indecent  acts,  due  apparently 
to  uncontrollable  impulses.  The  attack  lasts  a 
few  days,  and  is  succeeded  by  a  long  interval  of 
sobriety  and  chastity.     These  patients  have  gQW- 


INSANITY   AND    ITS    LEGAL    RELATIONS.         71 

erall}^  some  herediUiiy  taint ;  and  not  unfre- 
quently  evidences,  though  often  slight,  of  a  mor- 
bid mental  state  nmy  he  detected  in  the  intervals, 
if  very  carefully  looked  for." 

§  36.  Qxiininism  |  similarity  oi  symptoms  to  alcoholism. 

From  some  personal  experiences  as  well  as  ob- 
servations the  author  is  induced  to  say  that  the 
excessive  use  of  quinine  and  perhaps  other  medi- 
cines will  produce  delirium,  and  in  fact  some  of 
the  symptoms,  at  least,  of  delirmm  tremens.  And 
in  this  conclusion  he  is  supported,  to  some  extent, 
by  respectable  authority. 

A  disease  known  as  quininism  is  recognized  by 
medical  authors  ;  and  it  is  defined  to  be  "  a  group 
of  symptoms  chiefly  connected  with  the  nervous 
system,  produced  by  the  presence  of  quinine  in 
the  system  :  "  Quain's  Med.  Die.  (8th  Am.  ed.) 
1317. 

Large  doses  of  quinine,  or  smaller  doses  long 
continued,  may  act  upon  the  nervous  system  after 
absorption,  and  the  nervous  symptoms  thus  pro- 
duced are  usually  called  cinchonism  :  Id. 

On  this  subject  Dr.  Burton  observes  :  "  The 
nervous  symptoms  to   which  the  term  cinchon- 


72  field's  medico-legal  guide. 

ism  is  applied  consists  of  afiectioiis  of  the  hearing 
and  sight,  cephalalgia,  and  sometimes  giddiness. 
Delirium,  convulsions  and  collapse  are  said  to 
occur  after  very  large  doses.  Noises  arie  heard 
in  the  ears,  the  sounds  being  of  a  humming 
character,  or  resembling  a  distant  water-fall,  the 
rino'ino:  of  bells,  or  the  strikino-  of  a  clock. 
These  noises  are  accompanied  by  more  or  less 
deafness,  voices  being  heard  as  if  the  speakers 
were  at  a  distance.  .  .  .  Affections  of  the 
sight  are  less  common.  They  consist  of  occa- 
sional optical  illusions,  intolerance  to  light,  am- 
blyophia,  mydriasis,  and  even  blindness  after 
large  doves.  .  .  .  Giddiness  also  comes  on, 
so  that  the  patient  may  have  difficulty  in  stand- 
ing or  walking,  either  after  a  single  large  dose, 
or  after  repeated  or  continued  small  doses.  .  .  . 
The  giddiness  is  probaljly  partly  due  to  weak- 
ness of  the  circulation,  in  part  to  the  action  of 
quinine  on  the  nerves  and  nervous  centers.  In 
some  persons  large  doses  of  quinine  cause  a 
febrile  condition,  unaccompanied  by  cephalalgia, 
but  preceded  by  humming  in  the  ears,  disturb- 
ances of  the  mental  faculties,  and  a  slight  rigor. 
In  others,  the  cerebral  symptoms  have  been  so 


INSANITY    AND    ITS    LEGAL    RELATIONS.        73 

marked  as  almost  to  amomit  to  a  temporary 
mania  :  "  Qiiaiii's  Med.  Die.  (6th  Am.  ed.)  1318. 
See  jpost^  topics  Delirium  and  Delirium  Tremens, 
§§  38,  40. 

§  37.  Delirium  in  general. 

This  is  a  form  of  mental  aberi-ation  incident 
to  febrile  diseases  and  sometimes  to  the  last 
stages  of  chronic  diseases.  Of  this  aberration 
of  mind,  Messrs.  Guy  &  F.,  in  their.  Forensic 
Medicine,  observe:  "Regardless  of  persons  or 
things  around  him,  and  scarcely  capa])le  of 
recognizing  them  when  aroused  by  his  attend- 
ants, the  patient  retires  within  himself,  to  dwell 
upon  the  scenes  and  events  of  the  past  which 
pass  before  him  in  wild  and  disorderly  array, 
while  the  tongue  feebly  records  the  varying  im- 
pressions in  the  form  of  disjointed,  incoherent 
discourse,  or  of  senseless  rhapsody  :  "  Guy  &  F. 
on  For.  Med.  (5th  ed.)  180;  Ray's  Med.  Jur.  346- 
The  former  authors  say:  "In  fatal  cases,  de- 
lirium usually  passes  into  coma,  but  occasionally 
it  disappears  some  hours  before  death,  leaving 
the  patient  in  the  full  possession  of  his  faculties. 
In  some  cases  the  memory  of  things  long  past 


74  field's  medico-legal  guide. 

revives,  and  iaDoiuioes  that  had  loiio'  fallen  into 
disuse  are  again  spoken  with  fluency.  Delirium 
is  an  almost  constant  sj^mptom  of  poisoning  by 
belladonna,  hyoscyamus  and  stramonium  ;  a  fre- 
quent result  of  poisoning  by  other  narcotic 
acrids  ;  an  occasional  one  in  poisoning  by  pure 
narcotics  and  irritants." 

§  38.  Legal  relations  of  delirium. 

It  will  be  manilest  that  the  subject  of  de- 
lirium would  not  be"  competent  to  do  any  civil 
acts,  nor  responsible  criminally  for  any  act  done 
or  committed  during  an  access  of  delirium.  The 
general  rule  here  prevails,  which,  as  we  have 
noticed,  governs  in  other  cases  of  unsoundness  of 
mind,  or  where  the  entire  soundness  of  the  mind  of 
a  testator  is  questionable,  namel}^  :  that  the  Will 
of  the  party  will  usually  ])q  sustained  where  the 
provisions  are  reasonable  and  consistent,  and  in 
harmony  with  the  desires  expressed  by  the  tes- 
tator when  mental  soundness  was  unquestioned, 
when  it  would  not  be  it  it  were  otherwise. 
Wills  and  other  instruments  executed  during 
lucid  intervals  w^ould  not  be  aftected  by  a  return 
of  delirium.     But  it  has  been  suggested  that  it 


INSANITY    AND   ITS    LEGAL    RELATIONS.  iO 

is  important  to  distiiiguisli  delirium,  with  inter- 
vals of  perfect  consciousness,  from  the  calmness 
of  demeanor  sometimes  assumed  by  patients 
laborino-  under  strano-e  delusions,  showinsf  them- 
selves  in  the  lirst  stao'e  of  convalescence  from 
fever  or  other  acute  disease  :  Id.  But  actual 
delirium  at  the  time  of  the  execution  of  a  con- 
tract or  Will  invalidates  it :  Dew  v.  Clark,  3 
Add.  Eccl.  (Eng.)  79  ;  Johnson  v.  Moore,  1 
Litt.  (Ky.)  371.  See  also  Contracts,  vol.  2, 
Field's  L.  B.,  §  80  ;  Wills,  vol.  5,  Field's  Law- 
yers' Briefs,  ^    727. 

§  39.  Delirium  tremens,  or  mania  a  potu. 

This  is  a  form  of  mental  disorder  incident  to 
habits  of  intemperate  drinking,  which  generally 
appears  as  a  sequel  to  a  few  days'  abstinence 
from  stimulatino-  drink.  But  abstinence,  as  a 
cause,  is  not  a  settled  question  ;  and  in  various 
cases  where  the  abstinence  was  apparently  vol- 
untary there  is  reason  to  suppose  that  it  was,  in 
fact,  the  incubation  of  the  disease,  and  not  its 
cause  :  See  Beck's  Med.  Jur.  (10th  ed.)  807  ; 
Ray's  Med.  Jur.  520  ;  Guy  &  F.  on  Forensic 
Med.    (5th   ed.)    181  ;     Criminal    Law,    vol.   2, 


76  field's  medico-legal  guide. 

Field's  Lawyers'  Briefs,    §  276  ;     Quain's  Die. 
Med.  (Am.  ed.),  sub.  Alcoholism. 

The  disease  is  easily  recognized  by  the  pecu- 
liar form  which  the  mental  unsoundness  assumes, 
and  by  the  equally  characteristic  bodily  symp- 
toms, and  by  the  previous  history  ;  and  in  most 
cases,  by  the  prompt  recovery  following  the  ju- 
dicious use  of  remedies.  But  a  state  closely 
allied  to  delirium  tremens  may  be  brought  on  by 
prolonged  abstinence,  too  close  attention  to  study 
or  business,  and  sexual  excesses  or  malpractices, 
and  these  may  co-operate,  to  produce  the  disease. 

§  40.  Symptoms  and  general  characteristics  of  delirium 

tremens. 
From  the  authorities  above  cited,  and  others 
relating  to  the  subject,  we  find  the  following  are 
among  the  common  symptoms  and  general  char- 
acteristics of  the  disease :  A  weak  and  com- 
pressible pulse,  cold  and  clammy  extremities, 
sleeplessness,  agitation,  hallucination  and  sus- 
picion ;  but  malignity  of  feeling  is  seldom  mani- 
fested. The  patient  is  restless,  sleepless,  suspi- 
cious and  cunning ;  has  highly  characteristic 
illusions  of  hideous  and  loathsome  objects,  such 
as  toads,  serpents,  scorpions,  and  hears  strange 


INSANITY    AND    ITS    LEGAL    RELATIONS.         77 

sounds   and  familiar  or  strange  voices  where  no 
one  is  present ;   is   constantly   trying  to   escape 
from  some  imaginary  danger,  or  the  presence  of 
those  whom  he  supposes  would  injure  him  ;   and 
in   extreme   cases  the   patient   exhibits  all  the 
symptoms  of  acute  mania.      The  following  is  a 
more   particular   statement  of  these  symptoms 
and  characteristics  :   "  Its  approach  is  generally 
indicated  by  a  slight  tremor  and  fidtering  ot  the 
hands  and  lower  extremities,  a  tremulousness  of 
the  voice,  a    certain    restlessness    and    sense    of 
anxiety  which  the   patient  knows   not   how  to 
describe  or  account  for  ;   disturbed  sleep  and  im- 
paired appetite.     These  symptoms   having  con- 
tinned  two  or  three  days,  at  the   end  of  which 
time  they  have  usually  increased  in  severity,  the 
patient  ceases  to  sleep  altogether,  and  soon  be- 
comes delirious  at  intervals.     After  a  while  the 
delirium  becomes  constant,  as  well  as  the  utter 
absence  of  sleep.     This  state  of  wakefulness  and 
delirium  continues  three   or  four   days,  when,  if 
the   patient   recover,  it  is  succeeded   by   sleep, 
which  at  first  appears  in   uneasy   and  irregular 
naps,  and  lastly  in  long,  sound  and  refreshing 
slumbers.     When  sleep  does  not  supervene  about 


78  field's  medtco-lp:gal  guide. 

this  time,  the  disease  proves  fatal.  The  mental 
aberration  of  delirium  tremens  is  marked  bv 
some  peculiar  characters.  Ahiiost  invariably 
the  patient  manifests  feelings  of  fear  and  sus- 
picion, and  Libors  under  continual  apprehensions 
of  being  made  the  victim  of  sinister  designs  and 
practices.  He  imagines  that  people  have  con- 
spired to  roi)  or  murder  him,  and  sometimes 
insists  that  he  can  hear  them  in  an  adjoining 
room  arranging  their  plans  and  preparing  to 
rush  upon  him,  or  that  he  is  forcibly  detained  and 
prevented  from  going  to  his  own  home.  One  of 
the  most  common  hallucinations  of  this  disease  is 
that  of  constantly  seeing  devils,  snakes  or  vermin 
around  him.  Under  the  terrors  inspired  l»y 
these  notions,  the  wretched  patient  often  endeav- 
ors to  cut  his  throat,  or  jmiip  out  of  the  window, 
or  murder  his  wife,  or  some  one  else  whom  his 
disordered  imaofination  identifies  with  his  ene- 
mies  :  ''  Condensed  statement  of  symptoms  in 
Bouv.  L.  D.,  sub.  Delirium  Tremens;  Quain's 
Die.  Med.  (Am.  ed.),  sub.  Alcoholism. 

But  the  hallucinations  and  delusions  of  the 
victim  of  delirium  tremens,  as  well  jis  of  other 
maniacs,  are  not  always  of  a  disao-reeable  char- 


INSANITY    AND    ITS   LEGAL    IlELATIONS.         79 

acter.  The  piitient  frequently  enjoys  for  hours 
a  succession  of  hallucinations  of  the  most  inter- 
esting and  pleasing  character ;  and  tine  pano- 
ramic views,  visions  of  the  beautiful  in  nature 
and  art,  and  pantomimic  performances  of  per- 
sons with  which  he  may  not  be  acquainted,  ap- 
parently intended  to  convey  some  useful  instruc- 
tion, or  encouraire  some  important  resolution  of 
the  subject  to  reform,  and  wiiich  is  not  unfre- 
quently  appreciated  and  enjoyed  by  him,  are  not 
uncommon  :  Guy  &  Fer.  on  For.  Med.  (5th  ed.) 
211  et  seq. 

A  recovered  relisiious  maniac,  author  of  an 
interesting  autobiography,  referring  to  his  illu- 
sions, says  :  "  My  senses  were  all  mocked  at  and 
deceived.  In  reading,  my  eyes  saw  words  on  a 
paper,  which,  when  I  looked  again,  were  not. 
The  ibrms  of  those  around  me,  and  their  features, 
chano-ed  as  I  looked  on  them.  ...  I  heard 
the  voices  of  invisible  agents,  and  notes  so  divine, 
so  pure,  so  holy,  that  they  alone,  perhaps,  might 
recompense  me  for  m;uiy  sufferings  :"  Id.  And 
it  appears  that  the  conversion  of  familiar  sounds, 
such  as  the  lowing  of  cattle,  the  falling  of  water, 
the  grating  'of  a  chain,  the  noise  of  footsteps. 


80  field's  medico-legal  guide. 

into  articulate  speech,  was  not  the  least  remark- 
able of  this  most  interesting  case.  And  these 
are  common  illusions  of  the  subject  of  delirium 
tremens  :  See  Id.  175  ;   6  Field's  L.  B.,  §  432. 

The  hallucinations  of  these  subjects  are  won- 
derfully variant  and  unaccountable.  Those  who 
are  familiar  with  the  play  "  M'liss  "  will  probably 
recall  the  dialogue  between  Bummer  Smith  and 
his  daughter,  M'liss,  which  illustrates  one  phase 
of  these  delusions  and  hallucinations  in  respect 
to  the  reality  of  impressions  upon  the  senses  of 
sight  and  hearing  as  objective  realities,  and  espe- 
cially the  uncertainty  w^hich  the  victim  feels  in 
respect  to  such  impressions.     It  is  as  follows  : 

S.  M'liss,  if  I  war  to  ask  you  a  question,  you 
wouldn't  deceive  your  poor  old  dad,  would  you  ? 

M.  Wouldn't  deceive, — you  know. 

S.  In  course  I  do,  M'liss,  in  course  I  do  ;  now, 
if  I  war  to  ask  you,  if  you  seed  that  ar  rabbit 
that  rund  along  by  that  ar  tree,  —  did  yer  see  it, 
M'liss,  eh  ? 

M.  It  war  a  rabbit. 

S.  I  thought  it  mought  have  been  a  squirrel, 
but  it  war  a  rabbit,  weren't  it,  M'liss  ? 

M.  I  seed  it,  dad. 


INSANITY    AND    ITS    LEGAL    RELATIONS.        81 

S.  Now,  M'liss,  may  be  it  war  a  jackass-rabbit ; 
you  wouldn't  say  it  warn't  a  jackass-rabbit  if  it 
war  a  jackass-rabbit,  would  ye,  M'liss  ? 

M.  It  war  a  jaci^ass-rabbit. 

S.  You  wouldn't  say  a  jackass-rabbit  war  some 
other  kind  of  a  rabbit  —  you  know  I  seed  it ; 
now,  if  I  war  to  ask  you,  for  instance,  if  it  wore 
a  green  hat  and  a  yaller  ribbon,  you  wouldn't 
fool  me  and  say  it  did  if  it  didn't  ? 

M.  And  a  red  rosette. 

S.  I  didn't  quite  ketch  on  to  the  rosette ;  but 
I  say.  M'liss,  do  you  think  it  altogether  the 
square  thing  for  a  rabbit  to  war  a  rosette  ? 

M.  Shouldn't  war  a  rosette. 

S.  That's  so,  M'liss,  that's eh  ? 

M.  I  didn't  say  anything. 

S.  Who  said  you  said  anything  ?  What  makes 
you  think  you  said  anything,  and  yer  wouldn't 
think  yer  said  anything,  if  yer  didn't  say  any- 
thing, would  yer,  gal  ? 

It  may  be  observed  that  the  subject  of  an  attack 
of  delirium  tremens  is  frequently,  after  he  has 
recovered,  misled  by  the  impressions  made  upon 
his  mind  while  in  the  state  of  delirium,  and  will 


82  field's  medico  legal  guide. 

sometimes  refer  to  these  impressions  as  though 
they  were  among  his  ordinary  experiences.  And 
it  is  only  after  expressions  of  wonder  and  incre- 
dulity by  his  associates  that  he  learns  to  be  cau- 
tious and  reticent  in  reference  to  them.  To  the 
victim  the  delusions  and  hallucinations  are  actual 
and  objective,  although  arising  from  his  own 
diseased  brain  ;  and  especially  is  this  the  case 
where  these  phenomena  are  not  so  extravagant  as 
to  carry  on  the  face  of  them,  even  to  the  recovered 
victim,  manifest  evidence  that  they  were  delusions 
and  hallucinations,  and  subjective  rather  than 
objective  impressions.  And  it  may  be  further 
observed  that  these  phenomena  may  continue 
for  some  time  after  convalescence,  and  when  the 
victim  is  apparently  restored  to  his  normal  men- 
tal condition  ;  and  especially  is  this  the  case  in 
respect  to  the  impression  of  hearing  voices  near 
him,  or  in  an  adjoining  room,  or  outside  in  the 
open  air.  And  not  unfrequently  such  delusions 
aflford  much  amusement  to  the  convalescent,  who 
comprehends  the  source  of  them  as  his  own  un- 
restored  brain.  When  it  occurs,  as  it  frequently 
does,  that  the  thoughts  and  sentiments  uttered 
by  the  unsubstantial  visitors  are  entirely  at  vari- 


INSANITY   AND    ITS   LEGAL    EELATIONS.         83 

aiice  with  his  own,  which  is  frequently  the  case, 
the  phenomena  become  inexplicable. 

Some  knowledge  of  these  matters  may  be  im- 
portant in  cases  where  the  mental  soundness  of  a 
person  may  be  a  question  under  investigation, 
whether  it  arises  on  a  question  of  his  credibility 
as  a  witness,  or  on  the  validity  of  his  will,  or  on 
his  liability  on  contract,  or  even  on  his  responsi- 
bility for  some  apparently  criminal  act. 

§  41.  Legal  relations  of  delirixim  tremens. 

Delirium  tremens  is  a  recognized  disease,  with 
mental  unsoundness  a  symptom ;  wherefore  the 
person  thus  diseased  cannot  be  held  responsible 
for  his  acts,  and  he  will  not  be  responsible  for 
acts  that  would  otherwise  be  criminal :  Guy's 
For.  Med.  (5th  ed.)  182  ;  see  also  Criminal  Law, 
vol.  2,  276  :  United  States  v.  Clark,  2  Cranch 
(U.  S.),  158  ;  United  States  v.  McGlue,  1  Curt. 
(C.  C.)  1  ;  United  States  v.  Drew,  5  Mason  (C. 
C),  28  ;  Rennie's  Case,  1  Lew.  C.  C.  (Eng.)  76 ; 
Rex  V.  Meaken,  7  C.  &  P.  (Eng.)  297  ;  O'Brien 
V.  People,  48  Barb.  274;  Real  v.  People,  55 
Barb.  551  ;  42  N.  Y.  270  ;  Lonergan  v.  People, 
6  Park.  C.  R.  (N.  Y.)   209  ;  Bailey  v.  State,  26 


84  field's  medico-legal  guide. 

Ind.  551 ;  Bales  v.  State,  3  W.  Va.  685  ;  Carter 
V.  State,  12  Tex.  500  ;  Com.  v.  Eogers,  7  Met. 
(Mass.)  500  ;  41  Am.  Dec.  458 ;  Eay's  Med. 
Jur.  520  ;  j)Ost,  §  57. 

§  42.  Civil  acts  of  persons  of  unsound  mind. 

An  idiot,  lunatic,  maniac,  or  other  person  no7i 
compos  mentis,  cannot  make  a  valid  contract  or 
will ;  and  this  rule  applies  whether  the  person 
be  permanently  or  temporarily  of  unsound  mind. 
If  at  the  time  he  is  mentally  disabled  from  un- 
derstanding the  purpose  and  effect  of  the  act,  it 
avoids  it :  See  Contracts,  vol.  2,  Field's  L.  B., 
§  80.  Such  persons  are  incompetent  in  law  to 
enter  into  a  contract  or  to  make  a  valid  will : 
Hovey  v.  Hovey,  55  Me.  256  ;  Dennett  v.  Den- 
nett, 44  N.  H.  531  ;  Bond  v.  Bond,  7  Allen 
(Mass.),  1  ;  Sowers  v.  Pumphrey,  24  Ind.  231  ; 
Ham.  on  Ins.  10  ;  Wills,  vol.  5  ;  Field's  L.  B., 
§  727  ;  ante,  §§  18,  22,  26. 

§  43.  In  case  of  wills. 

Blackstone  observes  :  •'  Madmen,  or  otherwise 
no7i  compotes,  idiots  or  natural  fools  ;  persons 
grown  childish  by  reason  of  old  age  or  distem- 
per, such  as  have  their  senses  besotted  by  drunk- 


INSANITY    AND    ITS   LEGAL    RELATIONS.        85 

eniiess  —  Jill  these  are  incapable  by  reason  of 
mental  -  disability  to  make  any  will,  so  long  as 
such  disability  lasts  :"  2  Bl.  Com.  497  ;  see  also 
1  eTar.  on  Wills  (5th  Am.  ed.),  63  ;  Ray's  Med. 
Jnr.,  §  54  ;  Brannatyne  v.  Brannatyne,  14  Eng. 
L.  &  Eq.  581. 

The  law,  however,  makes  a  distinction  be- 
tween the  subjects  of  total  mania,  or  unsound- 
ness of  mind,  and  those  of  partial  insraiity,  mo- 
nomania, or  unsoundness  of  mind,  so  far  as  it 
relates  to  testamentary  capacity.  In  the  latter 
cases  the  authorities  distinctly  sustain  the  doc- 
trine that  the  person  may  make  a  will,  unless  he 
at  the  time  is  laborins^  under  a  delusion  which 
would  materially  influence  the  testamentary  dis- 
position of  his  property :  Guy  &  F.  For.  Med. 
(5th  ed.)  216. 

A  person  may  have  an  insane  belief  or  delu- 
sion as  to  one  or  more  subjects  and  not  as  to 
others  ;  and  if  the  delusion  has  no  relation  to 
his  testamentary  disposition,  it  would  not  be  af- 
fected by  it ;  and  this  may  be  inferred  from  the 
reasonable  provisions  of  the  will,  and  its  entire 
accord  with  the  wishes  of  the  testator  as  ex- 
pressed on  former  occasions,  when  there  was  no 


86  field's  medico-legal  guide. 

question  as  to  his  sanity  and  competency  :  See 
ante,  §22;  2  Gr.  Ev.,  §  371;  1  Best  on  Ev., 
§§  147,  150  ;  Foreman's  Will,  54  Barb.  (N.  Y.) 
274  ;  Seaman's  Friend  Soc.  v.  Hopper,  33  N.  Y. 
619  ;  Duffield  v.  Morri-s  2  Harr.  (Del.)  375  ; 
see  also  Wills,  vol.  5,  Field's  L.  B.,  §§  727,  729; 
Banks  V.  Goodfellow,  5  L.  R.,  Q.  B.  (Eng.)  549; 
Hovey  v.  Chase,  52  Me.  304  ;  Clapp  v.  Fuller- 
ton,  34  N.  Y.  190  ;  Boardman  v.  Woodman,  47 
N.  H.  120  ;  Stackhoiise  v.  Hortoii,  15  N.  J.  Eq. 
202  ;  Taylor  v,  Kelly,  31  Ala.  59. 

It  is  not  ever}'  degree  of  unsoundness  of  mind 
which  will  take  away  the  capacity  for  testa- 
mentary disposition.  But  where  insane  delusion 
and  mental  unsoundness  has  been  shown  to  exist 
in  a  person,  a  presumption  might  properly  arise 
against  his  competency  to  make  a  Avill  :  Rogers 
V.  Walker,  6  Pa.  St.  371  ;  47  Am.  Dec.  470. 
''  And  the  presumption  against  a  Avill  made 
under  such  circumstances  becomes  additionally 
strono'  where  the  will  is,  to  use  the  term  of  the 
civilians,  an  inofficious  one — that  is  to  say,  one 
in  which  natural  affection  and  the  claims  of  near 
relationship  have  been  disregarded.  But  where, 
in  the  result,  a  jury  are  satisfied  that  the  delu- 


INSANITY    AND    ITS    LEGAL    RELATIONS.         87 

sioii  has  not  aiFectecl  the  ijeneral  faculties  of 
the  mincl,  and  can  have  had  no  effect  upon  the 
will,  we  see  no  reason  why  the  testator  should 
have  lost  his  right  to  make  a  will,  or  why  a  will 
made  under  such  circumstances  should  not  be 
upheld  :"  Cockburn,  C.  J.,  in  Banks  v.  Good- 
felk)w,  5  L.  K.  Q.  B.  (Eng.)  549  ;  see  also 
Stanton  v.  Weatherwax,  16  Barb.  (N.  Y.)  259  ; 
Hovey  v.  Chase,  52  Me.  304;  Boardman  v. 
Woodman,  47  N.  H.  120;  Clapp  v.  Fullerton, 
34  N.  Y.  190  ;  Stackhouse  v.  Horton,  15  K  J. 
Eq.  202 ;  Truml)ull  v.  Gibbons,  22  N.  J.  L. 
117  ;  Taylor  v.  Kelly,  31  Ala.  59.  As  in  other 
cases  involving  capacity,  the  questions  to  be  de- 
termined are  whether  the  testator  had  sufficient 
memory  to  recall  his  property,  and  those  upon 
whom  his  bounty  should  confer  it,  and  sufficient 
mind  to  construct  a  will  with  a  due  understand- 
ing of  the  business  then  in  hand,  and  in  the  man- 
ner in  which  he  desired  his  possessions  to  be  dis- 
tributed :  1  Jar.  on  Wills  (5th  Am.  ed.),  94  ; 
Clark  V.  Fisher,  1  Paige  (N.  Y.),  171  ;  Higgins 
V.  Carleton,  28  Md.  115  :  Yoj  v.  McCord,  74 
111.  33  ;  Lowder  v.  Lowder,  58  Ind.  538  ; 
Quaine's  Die.  of  Med.  (Am.  cd.),  topic  Wills,  p. 
260  ;  5  Field's  L.  B.,  §  727  ;   6  id.,  §  435, 


88  field's  medico-legal  guide. 

§  44    Conduct  and  declarations  of  the  testator. 

The  conduct  and  declarations  of  the  testator  be- 
fore and  after  the  execution  of  the  will  are  held  to 
be  competent  evidence  if  they  tend  to  show  un- 
soundness of  mind  or  undue  influence  at  the  time  of 
the  execution ,  but  not  otherwise :  Boy  Ian  v.  Meeker, 
28  N.  J.  L.  224  ;  Kinne  v.  Kinne,  9  Conn.  104. 
So  a  sudden  change  of  common  and  usual  to 
eccentric  and  peculiar  habits  will  frequently  fur- 
nish very  cogent  evidence  of  insanity  :  Lucas  v. 
Parsons,  27  Ga.  593.  But  it  has  been  held  that 
suicide  is  not  conclusive  evidence  of  it :  Brooks 
v^  Barrett,  Pick.  (Mass.)  94  ;  Burrows  v.  Bur- 
rows, 1  Hagg.  (Eng.  Eccl.)  109,  146. 

§  45.  The  test  of  capacity  to  manage  business. 

"In  the  majority  of  cases  of  imbecility  there  is 
no  dij05culty  in  deciding  on  the  competency  of  the 
individual  to  take  care  of  his  own  affairs,  to  form 
contracts,  to  devise  property;  but  in  a  few  cases, 
and  especially  when  the  subject  of  inquiry  has  been 
intrusted  with  or  consulted  about  the  management 
of  his  affairs,  the  question  is  not  so  easy.  But  a 
comparison  of  the  existing  with  the  former  state 
of  mind  .  .  .  supplies  a  simple  and  obvious  test. 
The  tests  of  capacity  usually  recommended  in 


INSANITY    AND    ITS    LEGAL    RELATIONS.         89 

cases  of  imbecility  are  obviously  iDsiifficieiit  to 
determine  whether  or  not  a  man  is  capable  of 
managing  his  own  property.  The  arithmetical 
test,  on  which  so  much  stress  has  been  laid,  is  a 
test  of  knowledge,  not  of  power.  A  man  may 
be  the  best  accountant  in  the  world,  but  he  may 
be  a  moral  imbecile,  and  have  so  mean  a  sense  of 
right,  so  childish  a  fancy,  so  weak  a  will,  that 
from  infancy  to  age  he  may  yield  to  every  im- 
pulse, and  gratify  every  whim,  without  once 
counting  the  cost.  A  patient  of  our  own,  with 
whom  we  had  been  intimate  for  years,  owed 
pence  as  a  child,  and  pounds  as  a  boy,  and  added 
debt  to  debt  with  each  year  that  passed  over  his 
head,  till  at  length  a  severe  disappointment 
brought  on  a  distinct  attack  of  mania,  of  which  a 
benevolent  but  extravagant  mission,  violent  out- 
bursts of  passion,  fierce  hatreds,  arrangements  to 
spend  a  year's  income  in  a  week,  and  the  un- 
founded expectation  of  an  immense  fortune  on 
the  morrow,  were  constituent  parts.  He  carried 
with  him  to  an  asylum  a  host  of  delusions,  and 
died  in  the  firm  conviction  that  he  was  the 
Saviour  of  mankind.  In  this  case  there  was  the 
cultivated  and  refined  intellect  of  a  man  with 


90  field's  medico-legal  guide. 

more  than  the  weakness  of  a  child  ;  but  no  test 
could  have  proved  him  incapable  of  managing 
himself  and  his  affairs,  save  only  the  history  of 
his  life.  The  criminal  acts  of  persons  of  weak 
intellect  are  as  strongly  mai'ked  b}^  folly  as  their 
words  and  actions.  They  have  no  surer  chai'ac- 
ters,  and  we  no  better  trust.  But  in  this  case, 
as  in  that  of  maniacs,  the  law  insists  upon  the 
test  of  a  knowledge  of  right  and  wrong,  which 
is  as  insufficient  in  criminal  as  the  arithmetic 
test  in  civil  cases.  It  is  the  test  of  knowledge, 
not  of  power  ;  and  the  knowledge  of  right,  and 
the  power  to  act  aright,  are  as  distinct  as  science 
and  art :  "  Guy  &  F.  on  For.  Med.  (5th  ed.) 
209  ;  see  also  McCurry  v.  Hooper,  12  Ala.  823  ; 
46  Am.  Dec.  289  ;  see  also  Foster  v.  Means,  1 
Spear  Eq.  (S.  C.)  569  ;   42  Am.  Dec.  332. 

It  has  been  held  that  a  kind  or  degree  of  in- 
sanity whi(;h  would  not  excuse  a  person  for  a 
criminal  act  may  render  him  legally  incompe- 
tent to  manage  himself  and  his  affairs  :  Belli ng- 
ham-s  Case,  5  C.  &  P.  (Eng.)  168. 

On  this  question  Mr.  Mandsiey  says  :  "  If  a 
person  is  incompetent  to  manage  property,  it  is 
because  be  has  lost  some  portion  of  his  mental 


INSANITY    AND    ITS    LEGAL    RELATIONS.         91 

power  ;  and  this  fact  cannot  justly  be  ignored  in 
deciding  upon  his  responsibility  for  criminal  acts. 
Insanity  once  admitted,  it  is  within  the  reach  of 
no  mortal  comprehension  to  know  exactly  how 
far  it  may  have  affected  the  quality  of  his  acts. 
To  say  that,  possibly,  it  may  have  had  no  efi'ect 
at  all,  is  not  enough.  It  should  be  proved  by 
the  party  who  affirms  it  :  "  Mandsley  on  Eesp.  in 
Ment.  Dis.  111.  But  this  relates  to  the  burden 
of  proof,  which  we  will  hereafter  consider.  In- 
sanity once  admitted,  in  any  degree,  it  is  only 
sheer  presumption,  not  wisdom,  to  say  that  it 
could  not  have  perverted  the  action  of  the  mind 
in  regard  to  any  particular  criminal  act  :  Ray's 
Med.^Jur.  60-64,  273-284. 

§  46.  Doctrine  as  to  the  biirden  of  proof. 

The  English  rule  as  to  the  burden  of  proof,  on 
a  plea  of  insanity  in  a  criminal  case,  is  upon  the 
defendant,  and  he  is  required  to  prove  his  in- 
sanity beyond  a  reasonable  doubt.  The  defense 
is  one  of  confession  and  avoidance,  and  the 
matter  of  avoidance  must  be  fully  established  by 
the  [)risoner  :  3  C.  &  K.  (Eng.)  188  ;  4  Cox 
C.  C.  (Eng.)  155.     And  this  rule  has  been  fob 


92  field's  medico-legal  guide. 

loAved  in  various  states  in  this  country  :  See  21 
N.  J.  L.  202  ;  76  Pa.  St  414  ;  8  Jones  (N.  C), 
463  ;   36  Am.  Eep.  467. 

But  in  most  of  the  states  of  the  Union  the 
general  rule  seems  to  be  that,  whenever  in  the 
course  of  a  trial  evidence  is  produced  showing 
that  the  defendant  was  of  unsound  mind  at  or 
before  the  time  the  criminal  act  was  done,  the 
burden  of  proof  immediately  rests  upon  the 
prosecution  to  show  the  contrary.  In  such  a 
case  the  onus  shifts  upon  the  prosecution,  and  it 
devolves  upon  that  side  to  show  that  insanity  did 
not  exist,  or  if  it  did,  that  it  was  not  of  such  a 
character  as  to  excnse  the  act :  14  A.  L.  Reg. 
N.  S.  20  ;  16  id  453  ;  40  N.  H.  399  ;  43  id. 
224  ;  19  Ind.  170  ;  40  111.  352  :  17  Mich.  9  ; 
10  Fed.  Rep.  163,  202  ;  2  Field's  Lawyers' 
Briefs,  §  272  ;  4  Field's  Lawyers'  Briefs,  §§  114, 
146. 

§  47.  General  presumption. 

The  general  presumption  is  in  favor  of  mental 
soundness,  and  usually  the  burden  of  proof  would 
rest  upon  the  party  denying  it,  whether  the  ques- 
tion arises  upon  a  contract  or  will,  or  upon  trial 


INSANITY    AND    ITS    LEGAL    RELATIONS.         93 

for  a  crime.  But  if  a  previous  state  of  general 
insanity  is  shown,  the  ])urden  of  proof  would  be 
changed,  and  in  such  a  case  proof  of  the  sanity 
of  a  testator  would  devolve  upon  the  party 
affirming  it :  See  Wills,  Vol.  5,  Field's  Lawyers' 
Briefs,  §  730  ;  Evidence,  vol.  3,  Field's  Lawyers' 
Briefs,  §  310  ;  Best  on  Ev.,  §§  332,  405  ;  2  Gr. 
Ev.,  §  689  ;  Grabill  v.  Barr,  5  Pa.  St.  441  ;  47 
Am.  Dec.  418  ;  Kogers  v.  Walker,  6  Pa.  St.  371  ; 
47  Am.  Dec.  470  ;  Commonwealth  v.  Eogers,  7 
Met.  (Mass.)  500  ;  41  Am.  Dec.  458  ]  see  also 
Gerish  v.  Nason,  22  Me.  438  ;  Cilly  v.  Cilly,  34 
Me.  162  ;  Dean  v.  Dean,  27  Yt.  746  ;  Gabriel  v 
Barr,  5  Pa.  St.  441  ;  47  Am.  Dec.  418  ;  Thomp 
son  V.  Kyner,  65  Pa.  St.  368  ;  Eckert  v.  Flowry 
43  Pa.  St.  56  ;  Triunbull  v.  Gibbons,  22  N.  J.  L' 
117  ;  51  Am.  Dec.  253  ;  Morris  v.  Stokes,  21 
Ga.  552  ;  Taylor  v.  Kelly,  31  Ala.  59  ;  Colton 
V.  Ulmei-,  45  Ala.  378  ;  Chandler  v.  Barrett,  21 
La.  An.  58  ;  Guthrie  v.  Pierce,  33  Ark.  396  ; 
Matter  of  Coffman,  12  la.  491  ;  Mclntyre  v. 
McCown,  28  la.  480  ;  Roe  v.  Taylor,  45  111.  485  ; 
Rutherford  v.  Morris,  77  111.  397  ;  Harvey  v- 
Sullens,  46  Mo.  157  ;  People  v.  Meyers,  20  Cal- 
520. 


94  field's  medico-legal  guide. 

The  rale  as  to  the  qiuiiitiim  of  evideuce  to  es- 
tabUsh  insanity  as  a  defense  in  criminal  cases  is 
the  same  as  in  civil  cases,  viz.:  that  the  jury  may 
determine  the  question  from  a  mere  preponder- 
ance of  evidence  ;  and  proof  that  snch  a  mental 
condition  existed  beyond  a  reasonable  doubt 
does  not  seem  to  be  required  :  State  v.  Lawrence, 
57  Me.  574  ;  Com.  v.  Rogers,  7  Met.  (Mass.) 
500 ;  Com.  v,  Eddy,  7  Gray  (Mass.),  183  ;  Fer- 
ris V,  People,  35  N.  Y.  125  ;  Hoffs  v.  People, 
31  111.  385  ;  State  v.  Felter,  32  la.  50  ;  State  v. 
Hundley,  46  Mo.  414  :  State  v.  Reidemire,  70 
Mo.  173;  36  Am.  Rep.  462. 

§  48.  Test  of  capacity  to  contract. 

Partial  insanity  upon  a  subject  in  no  wise  con- 
nected with  a  contract  will  not  invalidate  it : 
Boyce  v.  Smith,  9  Gratt.  (Ya.)  704  ;  60  Am. 
Dec.  303  ;  and  contracts  made  with  lunatics  are 
not  all  absolutely  void :  Richardson  v.  Strong, 
13  Ired.  L.  (N.  C.)  106  ;  55  Am.  Dec.  430  ;  as 
for  goods  furnished  innocently  on  his  order  :  See 
Beals  V,  Lee,  10  Pa.  St.  96  ;  40  Am.  Dec.  573. 
Nor  will  weakness  of  mind  arising  from  old  age 
or  other  causes  invalidate  an  obligation  executed 


INSANITY   AND   ITS   LEGAL    RELATIONS.         95 

by  the  party.  But  if  Ihe  instrument  wjis  pro- 
cured by  the  use  of  undue  influence  or  fraud,  it 
would  be  invalid,  and  set  aside  in  equity  ;  and 
imbecility  of  mind  and  understanding  usually 
constitutes  a  material  ino;redient  in  determininir 
the  question  whether  a  contract  has  been  obtained 
by  fraud,  imposition  or  undue  influence  :  Juzan 
V.  Toulman,  9  Aia.  662  ;  44  Am.  Dec.  448  ; 
Smith  V.  Beatty,  2  Ired.  Eq.  (N.  C.)  456  ;  40 
Am.  Dec.  435  ;  Clark  v.  State,  12  Ohio,  483  ; 
40  Am.  Dec.  481. 

The  acts  and  contracts  of  persons  of  weak 
understanding,  or  imbecility  of  mind,  and  who  are 
therefore  liable  to  imposition,  will  be  held  void 
if  the  nature  of  the  act  or  contract  justifies  the 
conclusion  that  the  party  has  not  exercised  a 
deliberate  judgment,  but  has  been  imposed  upon, 
circumvented,  or  overcome  1)}^  cunning,  artifice, 
or  undue  influence.  And  a  contract  may  be  set 
aside  in  equity  where  there  is  imbecility  or  weak- 
ness of  mind  arising  from  old  age,  sickness, 
intemperance  or  other  cause,  and  manifest  inade- 
quacy of  consideration  ;  or  where  there  is  weak- 
ness of  mind  and  circumstances  of  undue  influence 
and  advantage  :   See  Equity  Jurisprudence,  vol. 


96  FIELDS   MEDICO  LEGAL    GUIDE. 

3,  Field's  L.  B.,  §§  87,  88;  Fraud,  vol.  3,  Field's 
L.  B.,  §§558,  575  -,  Tracy  v.  Sackett,  1  Ohio  St. 
42;  59  Am.  Dec.  610. 

§  49.  Liability  for  torts. 

A  lunatic,  or  other  person  7ion  compos  mentis, 
is  liable  in  damages  iu  a  civil  action  for  any  tort 
which  he  may  commit,  although  he  is  not  pun- 
ishable criminally  therefor  :  Morse  v.  Crawford, 
17  Vt.  449:  44  Am.  Dec.  349;  Williams  v. 
Cameron,  26  Barb.  172  ;  Behrons  v.  McKinze, 
23  la.  343;  Contracts,  vol.  2,  Field's  L.  B.,  §  81. 

§  50.  Unsoundness  of  mind  as  a  defense  to  a  criminal 

charge. 

An  idiot,  lunatic,  or  permanently  insane  person, 
or  one  who  is  otherwise  unsound  in  mind,  to  the  ex- 
tent that  he  does  not  know  whether  he  is  doing 
right  or  wrong,  is  not  punishable  for  any  act  he 
may  do  while  in  that  state  :  See  vol.  2,  Field's  L. 
B.,.§§  270,  271;  Reg.  v.  Law,  2  F.  &  F.  (Eng.)  836; 
Rex  V.  Offord,  5  C.  &  P.  (Eng.)  168  ;  Yance  v. 
Com.,  2  Va.  Cas.  132  ;  State  v.  Spencer,  21  N. 
J.  L.  196  ;  McAlister  v.  State,  17  Ala.  434.  A 
person  cannot  be  responsible  for  a  crime  unless 
he  possesses  sufficient  mental  capacity  and  Intel- 


INSANITY    AND    ITS    LEGAL    RELATIONS.         97 

ligeiice  to  have  a  criminal  intent,  and  if  his  men- 
tal powers  are  so  deficient  that  he  has  no  will, 
conscience,  or  controlling  mental  power,  or  if 
throuo'h  the  overwhelmins^  violence  of  mental 
disease  his  intellectual  power  is  for  the  time  oblit- 
erated, he  is  not  a  responsible  moral  agent,  aud 
is  not  responsible  criminally  for  his  acts  :  Com- 
monwealth V.  Eogers,  7  Met.  (Mass.)  500  ;  41 
Am.  Dec.  458  ;  see  also  McAlister  v.  State,  17 
Ala.  434;  52  Am.  Dec.  180;  Freeman  z;.  People, 
4  Denio  (N.  Y.),  1;  46  Am.  Dec.  216;  Criminal 
Law,  vol.  2,  §  271;  Shelf,  on  Lunacy,  458;  Wills 
V.  People,  32  N.  Y.  715  ;  State  v.  Lawrence,  57 
Me.  574  ;  State  v.  Hunting,  21  Mo.  464  ;  Peo- 
ple V.  Coffman,  24  Cj^I.  230;  People  v.  Sprague, 
2  Park,  C.  K.  (N.  Y.)  43 ;  Commouwealth  v. 
Heath,  11  Gray  (Mass.),  303. 

The  Ijroad  doctrine  on  this  subject  may  be 
stated  as  follows  :  No  act  done  by  a  person  in  a 
state  of  insanity  can  be  regarded  as  an  offense, 
and  no  insane  person  can  be  tried,  sentenced  to 
any  punishment,  or  punished  for  any  act  or 
offense  which  he  commits  in  that  state.  On  this 
subject  Blackstone  says  :  "If  a  man  in  his  sound 
memory  commits  a  capital  offense,  and  before 


98  field's  medico-legal  guide. 

arniignmeiit  for  it  he  becomes  mad,  he  shall  not 
be  tried  ;  if  after  he  be  tried  and  found  guilty  he 
loses  his  senses,  before  judgment,  judgment 
shall  not  be  pronounced  ;  and  if  after  judgment 
he  becomes  of  non-sane  memory,  execution 
shall  be  stayed.  If  there  be  any  doubt  whether 
the  person  be  comj)os  or  not,  this  shall  be 
tried  by  a  jury.  And  if  he  be  so  found,  a  total 
idiocy  or  absolute  insanity  excuses  from  the 
guilt,  and  of  course  from  the  punishment  of  any 
criminal  action  committed  under  such  depriva- 
tion of  the  senses  ;  but  if  a  lunatic  hath  lucid 
intervals  of  understanding,  he  shall  answer  for 
what  he  does  in  those  intervals,  as  if  he  had  no 
deficiency  :  "  4  Bl.  Com.  24  ;  Shelf,  on  Lunacy, 
467  ;  Freeman  v.  People,  4  Denio  (N.  Y.),  10  ; 
47  Am.  Dec.  216  ;  Commonwealth  v.  Meriam, 
7  Mass.  168  ;  1  Whart.  Cr.  L.,  §  53  ;  see  also 
Criminal  Law,  vol.  2,  Field's  Lawyers'  Briefs, 
§  277. 

^51.  Insane  delusions  and  irresistible  impulses. 

We  have  before  referred  to  the  answers  of  the 
English  judges  to  questions  propounded  by  the 
House  of  Lords  on  the  subject  of  insane  delu- 


INSANITY    AND    ITS    LEGAL    RELATIONS.        99 

sion  ill  its  relations  to  the  criminal  law  :  See 
Criminal  Law,  vol.  2,  Field's  Lawyers'  Briefs, 
§  272  ;  Reg.  /.•.  McNaughten,  10  C.  k  F.  (Eng.) 
210.  The  questions  were  suggested  by  the  case 
of  McNaughten,  who  shot  Mr.  Drummond  in 
London  in  1843,  and  was  tried  therefor  and  ac- 
quitted on  the  ground  of  insane  delusion.  The 
questions  propounded  were  as  follows  : 

"1.  What  is  the  law  respecting  alleged  crimes 
committed  by  persons  affected  with  insane  delu- 
sion in  respect  to  one  or  more  particular  persons, 
as,  for  instance,  where,  at  the  time  of  the  com- 
mission of  the  alleged  crime,  the  accused  knew 
he  was  acting  contrary  to  law,  but  did  the  act 
complained  of  with  a  view,  under  the  influence 
of  insane  delusion,  of  redressing'  or  reveno'ino* 
some  supposed  grievance  or  injiny^,  or  of  [)rodu('- 
iiig  some  pul^lic  benefit  ? 

"  2.  If  a  person,  under  insane  delusion  as  to 
existing  facts  commits  an  offense  in  consequeftce 
thereof,  is  he  therel)y  excused  ?  " 

To  these  questions  fifteen  English  judges  re- 
s[)()nded  as  follows  : 

"1.  The  jury  ought  to  be  told  in  all  cases  that 
every  man  is  presumed  to  be  sane,  and  to  possess 


100  field's  medico-legal  guide. 

a  sufficient  degree  of  reason  to  be  responsible  for 
his  crimes,  until  the  contrary  be  proved  to  their 
satisfaction  ;  and  that  to  establish  a  defense  on 
the  ground  of  insanity  it  must  be  clearly  proved 
that  at  the  time  of  committing  the  act  the  party 
accused  was  hiborini^  under  such  a  defect  of  rea- 
son,  from  disease  of  the  mind,  as  not  to  know  the 
nature  or  quality  of  the  act  he  was  doing,  or,  if 
he  did  know  it,  that  he  did  not  know  he  was 
doino^  what  was  wrono-, 

"  2.  Assuming  that  your  hardships'  inquiries 
are  confined  to  those  persons  who  hibor  under 
such  partial  delusions  only,  and  are  not  in  other 
respects  insane,  we  are  of  opinion  that,  notwith. 
standing  the  party  did  the  act  complained  of  with 
a  view,  under  the  influence  of  the  delusion,  of 
redressing  or  revenging  some  supposed  grievance 
or  injury,  or  of  producing  some  public  benefit, 
he  is  nevertheless  punishable  according  to  the 
nature  of  the  crime  committed,  if  he  knew  at 
the  time  of  committing  such  crime  that  he  was 
acting  contrary  to  law,  by  which  expressions  we 
understand  your  lordships  to  mean  the  law  of 
the  land. 

"  3.  The  answer  to  this  (the  2d)  question  must 


INSANITY    AND    ITS   LEGAL    RELATIONS.      101 

of  course  depend  upon  the  nature  of  the  delu- 
sion :  but  milking  the  same  assumption  as  we  did 
before,  that  he  labors  under  such  partial  delusion 
only,  and  is  not  in  other  respects  insane,  we 
think  he  must  be  considered  in  the  sanie  situa- 
tion as  to  responsibility  as  if  the  facts  with 
respect  to  which  the  delusion  exists  were  real. 
For  example,  if,  under  the  influence  of  his  delu- 
sion, he  supposes  another  man  to  be  in  the  act 
of  attempting  to  take  his  life,  and  he  kills  that 
man,  as  he  supposes  in  self-defense,  he  would  be 
exempt  from  punishment.  If  his  delusion  was 
that  the  deceased  had  inflicted  serious  injury  to 
his  character  or  fortune,  and  he  killed  him  in 
revenge  for  such  supposed  injury,  he  would  be 
liable  to  punishment." 

These  conclusions  of  the  fifteen  judges  have 
received  some  criticism,  and  in  the  light  of  more 
recent  observation  and  experience  their  sound- 
ness in  various  respects  has  been  questioned,  if 
not  destroyed.  They,  it  has  been  said,  take  no 
note  of  irresistible  impulses  of  the  insane  to  do 
wrongful  acts,  and  hold  a  partially  insane  person 
as  responsible  as  a  sane  one. 

Of  the  principles  thus  laid  down  it  has  been 


102  field's  medico-legal  guide. 

observed  that  they  are  open  to  the  following 
objections  : 

"  1.  To  make  delusion  the  sole  test  of  insanity 
in  criminal  cases,  and  especially  in  cases  of  homi- 
cide, is  at  complete  variance  with  the  well  ascer- 
tained facts  of  impnlsive  insanity,  in  which  the 
existence  of  delusion  can  be  distinctively  nega- 
tived, as  well  as  in  many  forms  of  emotional  in- 
sanit}^  in  which  delusions  form  no  necessary 
feature  of  the  disease. 

"  2.  On  the  other  hand,  the  test  of  a  knowl- 
edge of  right  and  wrong  is  condemned  by  the 
notorious  fact  that  a  great  many  insane  patients, 
and  even  imbeciles,  have  a  clear  conception  of 
the  two  ideas.  Indeed,  the  whole  management 
of  asylums  presupposes  a  knowledge  of  right 
and  wrong  on  the  part  of  inmates. 

"  3.  Nothino'  is  more  illoo-ical  than  the  state- 
inent  of  the  law  in  reference  to  the  partially  in- 
sane. It  amounts  to  nothing  less  than  an  abso- 
lute deni.al  of  the  significance  of  a  state  of  things 
universally  acknowledged  to  constitute  a  valid 
test  of  insanity.  The  error  has  arisen  from  con- 
foundino'  single  and  harmless  delusions,  such  as 
occur  ui   most  cases   of  hypochondriasis,    with 


INSANITY    AND    ITS    LEGAL    RELATIONS,      103 

those  that  affect  the  insane,  commonly  so  called. 
Such  siuole  delusions  are  doubtless  more  com- 
patible  with  self- restraint ;  but  they  are  of  rare 
occurrence,  and  do  not  often  figure  in  courts  of 
law,  and  harmless  as  they  may  seem  to  be,  .  .  . 
we  cannot  safely  assume  that  they  may  not  take 
a  dano-erous  turn.  That  a  man  should  believe 
that  he  is  the  Crystal  Palace,  may  seem  a  very 
harmless  fancy  ;  but  if  he  grew  angry  with  the 
government  for  removing  it,  to  assassinate  some 
member  of  the  government,  would  be  far  less 
illogical  than  the  fancy  itself.  The  partial  delu- 
sions of  the  insane  are  much  more  common,  bat 
when  they  are  closely  examined,  they  are  found 
to  be  the  offspring  and  natural  expression  of 
some  one  excited  feeling  or  passion,  which,  hav- 
ing had  force  enoufrh  to  create  illusions  of  the 
senses  and  delusions  of  the  mind,  may  be  ex- 
pected to  give  rise  to  insane  impulses  of  great 
power ;  to  which  we  may  add  that  a  multitude 
of  delusions  implies  mental  confusion  and  excite- 
ment in  proportion,  and  that  in  many  instances 
these  conditions  are  heightened  by  the  co-exist- 
ence with  these  delusions  of  the  mind,  of  illu- 
sions of  the  senses,  and   illusive  transformations 


104         field's  medico-legal  guide. 

of  real  objects  and  persons.  The  excited  feel- 
ings or  passions  which,  having  first  destroyed 
the  integrity  of  the  senses  and  mental  faculties, 
proceed  to  instigate  acts  of  violence  and  cruelty, 
are  religious  excitement  or  despondency,  jeal- 
ousy, domestic  anxieties  exaggerated  into  fear 
of  starvation,  and  discontent  transformed  into 
an  insane  belief  in  persecution.  Now  the  .acts 
of  violence  Avhich  ultimately  flow  from  these  ex- 
cited feelings  or  passions,  the  true  source  of  de- 
lusion, ought  to  be  judged  by  the  same  rules 
that  apply  to  the  delusions  themselves.  It  is 
reasonable  and  loo-ical  to  infer  that  the  acts  are 
as  little  subject  to  restraint  as  the  delusions  to 
correction.  What  right  have  we  to  assume  that 
the  man  who  cannot  control  his  thoughts  is  mas- 
ter of  his  actions  ? "  Guy  &  F.  on  Forensic 
Med.  220. 

§  52.  Common  sources  and  manifestations  of  insane  de- 
lusions. 

These  distino^uished  authors  refer  to  four 
sources  of  homicidal  acts  by  those  of  unsound 
mind,  as  follows  :  "1.  Maniacs  under  the  influ- 
ence of  religious  excitement  or  despondency  are 
subject  to  illusions  and  delusions  of  a  very  sin- 


INSANITY    AND    ITS    LEGAL    RELATIONS.     105 

gular  kind.  They  transform  the  persons  with 
whom  they  are  associated  into  supernatural  be- 
ings, endowed  with  authority  or  power  not  to  be 
questioned  or  resisted,  and  they  convert  com- 
mon and  familiar  sounds  into  the  articulate  lan- 
guage of  temptation  or  command.  One  reli- 
gious maniac,  therefore,  kills  a  relative  or  a 
keeper,» imagining  him  to  be  a  fiend  ;  another 
thinks  that  he  has  a  direct  commission  from  the 
Deity  to  fulfill  some  mission  of  wrath  or  extir- 
pation. In  case  of  religious  mania,  then,  we  can 
never  safely  affirm  that  the  homicidal  act  was 
not  the  consequence  of  a  command  which  the 
maniac  would  deem  it  impious  to  resist,  or  a  de- 
lusion which  places  him  in  his  own  sincere  con- 
viction beyond  and  above  the  operation  of  human 
laws.  The  maniac  who  believes  himself  to  be  God, 
Christ  or  the  Holy  Ghost,  would  from  the  very 
nature  of  the  case  deem  himself  irresponsible. 

"  2.  Of  homicidal  acts  instigated  by  jealousy, 
shaping  itself  into  a  distinct  delusion,  it  will 
suffice  to  observe  that  they  are  such  acts  as,  if 
committed  by  sane  men,  on  the  evidence  of  their 
senses,  would  be  punished  as  manslaughter,  and 
not  as  murder. 


106  riELD^S   MEDICO-LEGAL    GUIDE. 

"3.  Of  fathers  Jiiicl  mothers  who  kill  their 
children  under  the  pressure  of  domestic  anxiety 
cidminatino*  in  an  insane  dread  of  starvation,  it 
may  be  observed  that  they  are  generally  remark- 
able for  domestic  virtue  and  devoted  attachment 
to  their  victims,  and  that  between  them  and 
ordinary  murderers  there  is  no  single  point  of 
resemblance. 

"4.  Discontent,  transformed  into  an  insane 
belief  in  persecution,  presents  greater  difficulties. 
The  case  is  generally  put  in  a  form  which  seems 
to  preclude  a  satisfactory  answer.  A  maniac 
thinks  he  has  been  injured  by  another  and  kills 
him.  If  the  injury  were  real,  a  sane  murderer 
would  be  responsible,  and  so,  it  is  contended, 
ou2:ht  the  madman  to  be.  This  curiously  illoo-- 
ical  argument  ignores  the  simple  fact  that  the 
two  cases  have  nothing  in  common  but  the  act 
itself.  The  imaginary  offense  has  imaginary  ac- 
companiments, and  every  thought  connected  with 
it  is  one  of  confusion.  To  suppose  that  a  mind 
wdiich  can  imagine  an  impossible  offense  is  sound 
in  all  other  respects,  is  to  outrage  common  sense, 
and  set  at  nought  the  experience  of  all  who  have 
knowledge  of  the  insane  ;  for  Avith  one   consent 


INSANITY    AND   ITS    LECIAL    RELATIONS.      107 

they  repudiate  the  notion  of  a  mind  suljjeet  to 
such  fi  dekision  as  being  sound,  and  free  to  act 
as  it  will,  beyond  the  sphere  of  its  influence. 
The  more  closely  the  victim  of  this  painful  de- 
lusion is  observed,  the  more  extensive  is  found  to 
be  the  disorder  of  his  intellect.  Those  acts 
which  are  not  directly  prompted  Ijy  his  delusion 
are  more  strange,  and  his  passions  more  excita- 
ble than  those  of  other  men.  The  theory  of  a 
single  insane  idea,  springing  up  in  a  mind  other- 
wise sound,  havino;  no  efi:ect  on  the  remainino^ 
faculties,  and  simply  prompting  an  action  which, 
once  suggested,  is  carried  out  with  the  same 
complete  consciousness  of  its  real  nature  as  exists 
in  the  mind  of  the  sane  man  actino*  under  the 
suggestion  of  a  corresponding  reality,  is  too  ab- 
surd to  be  for  a  moment  entertained.  Even  in 
this  case,  then,  the  question  of  responsibility 
cannot  be  decided  by  the  simple  test  of  a  knowl- 
ed«;'e  of  rii^ht  and  wrous^.  But  there  is  another 
case  allied  to  the  one  now  under  consideration 
Avhich  presents  still  greater  difficulties.  A  man 
receives  a  real  injury,  and  avenges  himself;  but 
it  is  alleged  that  he  was  not  of  sound  mind  when 
he  connnitted  the  act.     The  unsoundness  of  his 


108         field's  medico-legal  guide. 

mind  is  admitted,  but  he  is  deemed  responsible 
because  his  act  was  instigated  by  the  common 
motive  of  revenge.  The  obvious  answer  is,  that 
the  real  injury  has  been  by  his  insane  mind  mag- 
nified to  undue  importance,  and  then  acted  upon 
just  as  if  it  had  been  altogether  imaginary  ;  and 
that  he  is  therefore  neither  more  nor  less  respon- 
sible for  his  act  than  the  man  whose  motive  was 
from  the  very  first  in  the  nature  of  a  delusion. 
In  this  case,  too,  an  inquiry  into  the  state  of 
mind,  extending  much  beyond  the  legal  test,  will 
be  necessary,  and  cannot  be  refused  ;  and  this 
once  f^ranted,  must  result  in  showino^  the  insuf- 
ficiency  of  the  test.  Even  in  those  cases  where 
the  criminal  act  cannot  be  traced  to  any  delusion 
of  which  it  is  the  legitimate  ofispring,  but  it  is 
simply  alleged  in  defense  that  the  party  is  of 
unsound  mind,  the  ver}^  fact  of  the  unsoundness 
becomes  an  irresistible  plea  in  mitigation.  It 
would  be  strange  indeed  if  the  case  of  the  maniac 
under  the  accusation  of  crime  is  the  only  one  in 
which  such  a  plea  is  ignored  and  refused.  .  .  . 
We  cannot,  therefore,  too  strongly  condemn  the 
credulity  which  credits  a  mind  already  occupied 
by  delusions  with  an  otherwise  efficient  state  of 


INSANITY    AND    ITS    LEGAL    RELATIONS.       109 

faculties  ;  and  we  contend  that  it  is  in  the  high- 
est degree  improbable  that  a  mind  so  possessed 
can,  be^^ond  the  sphere  of  its  delusions,  think, 
feel  and  act  with  clearness,  force  and  freedom 
from  the  same. 

"  Some  writers,  under  a  strong  sense  of  the 
failure  of  the  leo-al  test  of  knowleds^e  of  riirlit 
and  wrong,  have  sought  to  set  up  in  its  place  the 
power  of  control  or  restraint.  The  test  has  been 
thus  transferred  from  the  intellect  to  the  will  — 
from  the  knowledge  of  right  to  the  power  of 
acting  aright.  But  this  is  a  mere  shifting  of 
the  difficulty  ;  for  it  is  obviously  not  more  easy 
to  measure  the  exact  amount  of  a  man's  self- 
restraint  than  to  orauo'e  his  abstract  knowledsre 
of  right  and  wrong,  lawful  and  unlawful :  "  Gruy 
&  Fer.  Forensic  Med.  (5th  ed.)  121-124.  See 
also  Quain's  Die.  of  Med.  (Am.  ed.),  sub.  In- 
sanity, topics  Impulsive  Insanity,  Moral  Insanity, 
pp.  725,  727. 

We  have  copied  the  able  and  philosophical 
views  of  these  authors  to  show  the  inaccuracy  of 
the  test  of  criminal  responsibility  laid  down  by 
the  fifteen  learned  English  judges  in  response  to 
the  questions  propounded  l)y  the  English  Lords. 


110  field's  medico-legal  guide. 

§  53.  Test  of   capacity   required  for   criminal   responsi- 
bility. 

It  is  perhaps  difficult  to  fiiniish  any  absolute 
test  ill  such  cases  ;  but  it  may  be  said  that  in 
order  to  make  a  ])ersoii  responsible  for  his  acts 
as  criminal,  he  must  possess  enough  intelligence 
and  capacity  to  have  a  criminal  intent  and  pur- 
pose :  See  Criminal  Law,  vol.  2,  Field's  L.  B., 
§  272  ;  Com.  v.  Mosler,  4  Pa.  St.  261  ;  Com.  v. 
Rogers,  7  Met.  (Mass.)  500  ;  Sanchez  v.  People, 
22  N.  Y.  147  ;  Freeman  v.  People,  4  Denio,  9  ; 
Bovard  v.  State,  30  Miss.  600  ;  State  v.  Neeley ,  20 
id.  199  :  Pond  v.  People,  8  Mich.  150  ;  Willis  v. 
People,  32  N.  Y.  715.  Perhaps  the  opinion  of  the 
court  in  Bovard  v.  State  contains  as  clear  an  ex- 
position of  the  modern  doctrine  on  this  subject  as 
can  be  found  in  the  adjudications  in  this  country. 
It  was  observed  in  this  case  that  "in  order  to  con- 
stitute a  crime  a  person  must  have  intelligence 
and  capacity  enough  to  have  a  criminal  intent 
and  purpose.  If  his  reason  and  mental  powers 
are  either  so  deficient  that  he  has  no  will,  no  con- 
science or  controlling  mental  pov»^er ;  or  if,  through 
the  overwhelming  power  of  mental  disease,  his 
intellectual  power  is  for  the  time  obliterated,  he 
is  not  a  responsible  moral  agent,  and  is  not  pun- 


INSANITY    AND    ITS    LEGAL    RELATIONS.       Ill 

ishablc  for  criminal  acts.  But  these  are  extremes 
easily  distiiigviished  and  not  to  be  mistaken.  The 
difficulty  lies  between  these  extremes  and  cases  of 
partial  insanity,  where  the  mind  may  l)e  clouded 
and  weakened,  but  not  incapable  of  remem])er- 
ing,  reasoning  and  judging,  or  so  perverted  by 
insane  delusion  as  to  act  under  false  impressions 
and  influence.  In  these  cases  the  rule  of  law,  as 
we  understand  it,  is  this  :  A  man  is  not  to  be 
excused  from  responsibility  if  he  has  capacity 
and  reason  sufficient  to  enable  him  to  distinofuish 
between  right  and  wrong  as  to  the  particular  act 
he  is  then  doing, — a  knowledge  and  consciousness 
that  the  act  he  is  doing  is  wrong  and  criminal,  and 
will  subject  him  to  punishment.  In  order  to  l)e 
responsible  he  must  have  sufficient  power  of 
memory  to  recollect  the  relation  in  which  he 
stands  to  others,  and  in  which  others  stand  to 
him,  and  that  the  act  he  is  doing  is  contrary  to 
the  plain  dictates  of  justice  and  right,  injurious 
to  others,  and  a  violation  of  the  dictates  of  dut}^ 
On  the  contrary,  although  he  may  be  laboring' 
under  partial  insanity,  if  he  still  understands  the 
nature  and  character  of  the  act  and  its  conse- 
quences, if  he  has  a  knowledge  that  it  is  wrong 


112  field's  medico-legal  guide. 

and  criminal,  and  a  mental  power  sufficient  to 
apply  that  knowledge  to  his  own  case,  and  to 
know  that  if  he  does  the  act  he  will  do  wrong 
and  receive  punishment,  such  partial  insanity  is 
not  sufficient  to  exempt  him  from  responsibility 
for  criminal  acts  :  "  See  also  Quain's  Die.  Med. 
(Am.  ed.),  topic,  Legal  Insanity,  p.  726  et  seq. 

§  54.  Impulsive  mania,  or  uncontrollable  impulse. 

Of  this  form  of  mania  Messrs.  Guy  &  Ferrer 
observe:  "The  acts  committed  under  its  influ- 
ence have  most  all  of  the  following  characters  : 
They  are  without  discoverable  motive,  or  in  op- 
position to  all  knovvn  motives.  A  man  kills  his 
wife,  to  whom  he  is  tenderly  attached,  a  brother 
his  sister,  a  mother  her  infant,  or  the  victim  is 
one  whom  he  never  saw  before,  and  against 
whom  it  is  impossible  that  he  can  bear  malice. 
Nay,  the  victim  of  this  blind  passion  may  be  a 
horse  or  other  animal  incapable  of  offense.  After 
the  commission  of  the  act  he  does  not  seek  to 
escape ;  he  often  publishes  what  he  has  done  ; 
does  not  conceal  the  body,  but  openly  exposes 
it ;  delivers  himself  up  to  justice  ;  describes  the 
state  of  mind  which  led  to  the  act,  and  either 


INSANITY   AND    ITS    LEGAL    RELATIONS.      113 

remains  stupid  and  indifferent  or  is  overwhelmed 
with  remorse.  He  has  no  accomplices,  has  made 
DO  preparations,  and  takes  nothing  from  his  vic- 
tim. Sometimes  he  has  previously  spoken  of  his 
strong  temptation  and  begged  to  be  prevented 
from  doing  mischief.  These  homicidal  acts  are 
generally  preceded  by  a  striking  change  of  con- 
duct and  character,  and,  on  inquiry,  the  accused 
is  often  found  to  have  an  hereditary  tendency  to 
insanit}^,  to  be  subject  to  fits,  to  have  attempted 
suicide,  to  have  expressed  a  wish  for  death,  or  to 
be  executed  as  a  criminal.  .  .  .  Imbeciles 
are  peculiarly  liable,  as  we  should  suppose  they 
would  be,  to  these  wild  impulses,  and  it  is  easy 
to  understand  how  the  instinct  of  destruction  is 
sometimes  associated  with  delusions,  the  criminal 
act  itself  beinoj  the  result  of  strono^  excitement  of 
the  homicidal  passion,  while  the  delusion  sug- 
gests the  motive.  To  this  class  probably  belong 
those  cases  of  wholesale  murder  in  which  the 
father  of  a  family  destroys  his  wife  and  children 
to  prevent  them  falling  the  victims  of  starvation, 
and  then  puts  an  end  to  his  ow^n  life  ;  the  idea 
that  such  an  evil  threatens  them  being  insane,  no 
less  than  the  impulse  which  prompts  such  a  mode 


114  field's   MEDICO-LEGAL    GUIDE. 

of  escape.  Some  imbeciles,  who  are  addicted 
to  petty  theft,  rob  their  victims  ;  l)ut  they 
make  so  childish  a  use  of  that  which  they  have 
stolen  as  to  afford  fresh  proof  of  their  inherent 
weakness  of  mind.  Violent  homicidal  impulses 
are  also  very  common  in  the  epileptic  —  some- 
times preceding,  sometimes  following  the  fits, 
and  sometimes  taking  their  place  :  "  Guy  k  Far- 
rer  on  For.  Med.  (5th  ed.)  228,  229  ;  Whart.  & 
S.  Med.  Jur.  159,  n. 

§  55.  Defense  on  the  ground  of. 

To  constitute  a  defense  on  the  ground  of  im- 
pulsive mania  or  irresistible  impulse,  it  must 
exist  to  such  an  extent  and  with  such  violence, 
as  to  render  it  impossible  for  the  party  to  do 
otherwise  than  to  submit  to  it ;  and  a  mere  tem- 
poraiy  and  violent  passion  will  not  exempt  the 
person  from  responsibility  nor  constitute  a  de- 
fense for  wrongful  acts  :  Reg.  v.  Barton,  2  F.  & 
F.  (Eng.)  762  ;  Reg.  v.  Townley,  3  F.  &  F.  839; 
Scott  V.  Com.  4  Met.  (Ky.)  227  ;  Smith  v.  Com. 
1  Duval  (Ky.),  224  ;  Com.  v.  Mosler,  4  Pa.  St.^ 
266  ;  Hopps  v.  State,  31  111.  385  5  State  v.  Fel- 
ter,  25  la.  67;   Stevens  v.   State,    31  Ind.  486: 


INSANITY    AND    ITS    LEGAL    RELATIONS.     115 

Sanchez  v.  People,  22  N.  Y.  147  ;  Wbiirt.  &  S. 
Med.  Jur.,  §§  144,  162,  531,  537;  Reg.  v.  Mc- 
Naughteii,  10  CI.  &  Fiii.  (Eiig.)  130  ;  Willis  v. 
People,  5  Park.  C.  R.  (N.  Y.j  620  ;  State  v. 
Spencer,  21  N.  J.  L.  196  ;  see  also  2  Field's 
L.  B.,  §  273. 

§  56.  In  case  of  drunkenness  ;  legal  responsibility. 

Alcoholic  drinks  will  produce  intoxication  and 
drunkenness  of  various  degrees,  the  extreme  of 
mental  unsoundness  in  such  cases  reaching  [i 
condition  of  incoherent  utterances  and  uncon- 
sciousness. In  this  condition  the  contracts  of 
the  victims  would  be  void  or  voidable,  and  this 
would  apply  to  all  gifts  by  will  or  otherwise  : 
See  ante,  §  43.  And  on  general  principles  they 
should  be  held  irresponsible  criminally  for  their 
acts.  But  it  seems,  in  consideration  of  public 
policy,  the  law,  as  it  is  now  recognized  and 
administered  by  the  courts,  is  otherwise,  and 
drunkenness,  voluntary  or  involuntary,  is  not  an 
excuse  for  an  act  of  a  general  criminal  nature, 
done  under  its  influence  :  People  v.  Robinson,  2 
Park.  G.  R.  (N.  Y.)  649  :  Hester  v.  State,  17 
Ga.  146  ;   State  v.  Harlowe,  21  Miss.  446. 


116  field's  medico-legal  guide. 

The  common  law  seldom  excuses  or  relieves 
the  cliTuikard  fVom  responsibility  for  his  acts, 
either  in  civil  or  criminal  cases.  A  person  iion 
compos  mentis,  or  permanently  or  temporarily 
of  unsound  mind,  cannot  make  a  valid  contract 
or  perform  a  valid  civil  act.  A  temporary  in- 
sanity or  intoxication,  "produced  by  the  exces- 
sive and  voluntary  use  of  alcoholic  liquors,  may 
be  a  good  ground  for  avoiding  a  contract  en- 
tered into  while  in  that  state  ;  and,  generally, 
when  one  enters  into  a  contract  while  deprived 
of  his  reason,  he  may  repudiate  it  when  he  re- 
covers his  reason  :  "  See  Contracts,  vol.  2,  Field's 
L.  B.,  §  80 ;  Gore  v,  Gibson,  13  M.  k  W. 
(Eng.)  623  ;  Cook  v.  Clayworth,  18  Ves.  (Eng.) 
15  ;  Mitchell  v.  Kingman,  5  Pick.  (Mass.)  431  ; 
Arnold  v.  Richmond  Iron  Works,  1  Gray  (Mass.), 
434  ;  Gant  v.  Thompson,  4  Conn.  303  ;  Lang 
V.  Whidden,  2  N.  H.  435  ;  see  also  Shelf,  on 
Lunacy,  274,  304. 

But  this  rule  is  not  universal,  as  where  one 
makes  a  note  in  that  condition,  it  would  be  valid 
in  the  hands  of  an  innocent  holder  ;  and  the 
contract  of  a  drunken  man  is  not  void,  but  void- 
able :    State  Bank  v.  McCoy,  69  Pa.  St.  201 ; 


INSANITY   AND    ITS    LEGAL    RELATIONS.      117 

8  Am.  Eep.  246  ;   1    Ames'   Cas.  on  B,    &    N. 
558. 

But   in   criminal  cases  a  more  risforous  rule 
prevails,  and  drunkenness,  whatever  the  degree, 
will  not  excuse  a  criminal  act.     The   doctrine  of 
the  common  law  was  stated   by  Blackstone,  as 
follows:   "  As  to  artificial  and  contracted  mad- 
ness  or   intoxication,  which,   depriving  men  of 
their  reason,  puts  them  in  a  temporary  frenzy, 
our  law  looks  upon  this  as  an  aggravation  of  the 
offense,  rather  than  an  excuse  for  any  criminal 
misbehavior.     The  law,  considering  how  easy  it 
is  to  counterfeit  this  excuse,  and  how  weak  an 
excuse  it  is,  though  real,  will  not  suffer  any  man 
thus  to  privilege  one  crime  with  another  :"  4  Bl 
Com.    26  ;  see  also  R.   v.   Meakin,    7   C.   &  P 
(Eng.)   297 ;  E.   v.    Thomas,    7  C.   &  T.  820 
Swan  V.   People,  4  Park.    C.  R.  (N.  Y.)   649 
Kenny   v.    People,    31   N.  Y.  ^  330  ;  Boswell  v. 
Com.,   20   Grat.  (Va.)  860;   Choicer.  State,  31 
Ga.    424  ;   Flanigan  ^.  People,    86   N.  Y.  554  ; 
Criminal  Law,  vol.  2,  §  274  ;  Ray's  Med.  Jur. 
514  ;  3  Par.  &  Fonbl.  Med.  Jur.  39. 

The  soundness  of  this  old  doctrine  may  well 
be  questioned,  and  the  reasons  for  it  might  as 


118  field's  medico-legal  guide. 

well  be  applied  in  other  cases  ;  for  it  is  a  matter 
of  common  unclerstandino-  amono'  tlie  enlio-ht- 
ened  members  of  the  medical  profession  that 
other  habits  and  practices,  as  well  as  the  intem- 
perate use  of  spirituous  liquors,  may  produce 
mania  or  unsoundness  of  mind,  and  the  person 
may  pursue  these  habits  well  knowing  this  prob- 
able result,  and  would  be  exempt  from  criminal 
responsibility  for  acts  done  while  in  such  un- 
sound condition  of  mind  :  Allis.  Princ.  C.  L. 
(Scot.)  654;   22  Am.  Jur.  290:  a7i(e,  §  44. 

§  57.  Drunkenness  as  a  mitigation  of  criminal  acts. 

Notwithstanding  drunkenness  will  not  excuse 
criminal  acts,  still  in  case  of  the  trial  of  a  per- 
son for  murder  the  present  doctrine  seems  to  be 
that  the  intoxicated  condition  of  the  defendant  at 
the  time  of  the  taking  of  the  life  may  be  proved 
to  show  either  a  want  of  intent  to  murder  or  of 
premeditation,  and  to  reduce  the  oifense  from 
murder  to  some  inferior  degTce  of  homicide:  Keg. 
V.  Cruibe,  8  C.  &  P.  (Eng.f  546  ;  E.  v.  Meakin,  7 
C.  &  P.  (Eng.)  297  ;  ^.v.  Thomas,  sujjra  ;  Peo- 
ple V.  Robinson,  1  Park.  C.  R.  (N.  Y.)  619;  Peo- 
ple V.  Hammill,  2  Park.  C.  R.  223  ;  Lonergan  v. 


INSANITY    AND    ITS    LEGAL    RELATIONS.      119 

People,  6  Park.  C.  R.  209;  50  Barb.  266  ;  People 
V.  Rogers,  18  N.  Y.  9  ;  Kenny  v.  People,  31  N. 
Y.  330  ;  Choice  v.  State,  31  Ga.  424  ;  Humph- 
reys V.  State,  45  Ga.  190  ;  RafFerty  v.  People,  QQ 
111.  118  ;  Mclntyre  v.  People,  38  111.  515  ;  Kee- 
nan  v.  Com.,  44  Pa.  St.  55  ;   Shannahan  v.  Com., 

8  Bush  (Ky.),  463  ;  Dawson  v.  State,  16  Incl. 
428  ;   State  v.  Harlow,  21  Mo.  446. 

But  want  of  intent  or  premeditation  will  not 
be  conclusively  presumed  from  any  degree  of  in- 
toxication at  the  time  of  the  killing,  as  this  may 
have  existed  before  the  intoxication,  and  the  latter 
may  have  been  induced  as  a  part  of  a  plan  or 
purpose  to  accomplish  the  felonious  act  with  im- 
punity :  Id.;  see  also  O'Brien  v.  People,  48  Barb. 
(N.  Y.)  274.  Intoxication  in  such  cases  is  a  mere 
circumstance  to  be  considered  for  the  purpose  of 
mitii^^ation  :  Whart.  on  Hom.  371 ;  Com.  v.  Haw- 
kins,  3  Gray  (Mass.),  463  ;  Com.  v.  French, 
Thatcher's  Cr.  Cas.  (Mass.)  163  ;   Pirtie  v.  State, 

9  Humph.  (Tenn.)  663  ;  Swan  v.  State,  4  id.  136  ; 
State  V.  Bullock,  13  Ala.  413  ;  Pigman  v.  State, 
14  Ohio,  555. 

The  old  and  modern  doctrine  on  this  subject  is 
well  stated  in  the  opinion  of  the  court  in  the  case 


120  field's  medico-legal  guide. 

last  cited,  where  it  is  said  :  "  Drunkenness  is  no 
excuse  for  crime  ;  vet  in  that  class  of  crimes  and 
offenses  which  depend  upon  guilty  knowledge,  or 
the  coolness  and  deliberation  with  which  they 
are  perpetrated,  to  consummate  their  commission 
or  ^x  the  degree  of  guilt,  it  should  be  admitted 
to  the  consideration  of  the  jury.  If  the  act  is  of 
that  nature  that  the  law  requires  it  should  be 
done  with  guilty  knowledge,  or  the  degree  of 
guilt  depends  upon  the  calm  and  deliberate  state 
of  mind  at  the  time  of  the  commission  of  the  act, 
it  is  proper  to  show  any  state  or  <iondition  of  the 
person  that  is  adverse  to  the  proper  exercise  of 
the  mind  and  the  undisturbed  condition  of  the 
faculties.  The  older  writers  regard  drunkenness 
as  an  aggravation  of  the  offense,  and  excluded  it 
for  any  purpose.  It  is  a  high  crime  against  one's 
self  and  offensive  to  society  and  good  morals ; 
yet  every  man  knows  that  acts  may  be  committed 
in  a  fit  of  intoxication  which  would  be  abhorred 
in  sober  moments.  And  it  seems  strange  that 
any  one  should  ever  have  imagined  that  a  person 
who  committed  an  act  from  the  effect  of  drink, 
which  he  would  not  have  done  if  sober,  is  worse 
than  the  man  who  commits  it  from  sober  and  de- 


INSANITY    AND    ITS    LEGAL    RELATIONS.       121 

liberate  intent.  The  hiw  reofards  an  act  clone  in 
sudden  heat,  in  a  moment  of  frenzy,  when  pas- 
sion has  dethroned  reason,  as  less  criminal  than 
the  same  act  when  performed  in  cool  and  undis- 
turbed possession  of  all  the  iaculties. 

"  There  is  nothing  the  law  so  much  abhors  as 
the  cool,  deliberate  and  settled  purpose  to  do 
mischief.  That  is  the  quality  of  the  demon  : 
whilst  that  which  is  done  on  great  excitement,  as 
when  the  mind  is  broken  up  by  poison  or  intoxi- 
cation, though  to  be  punished,  may,  to  some  ex- 
tent, be  softened  and  set  down  to  the  hifirmities 
of  human  nature.  Hence,  not  regarding  it  as  an 
aggravation,  drunkenness,  as  anything  else,  show- 
ino:  the  state  of  mind  or  decree  of  knowledo-e, 
should  go  to  the  jury.  Upon  this  principle,  in 
modern  cases,  it  has  been  permitted  to  be  shown 
that  the  accused  was  drunk  when  he  perpetrated 
the  crime  of  killing,  to  rebut  the  idea  that  it  was 
done  in  a  cool  and  deliberate  state  of  mind  neces- 
sary to  constitute  murder  in  the  first  degree." 

§  58.  Delirium  tremens  as  an  excuse  in  criminal  cases. 

We  have  already  referred  to  the  legal  relations 
of  delirium  tremens :  See  ante^  §  42.     But  a  fur- 


122  field's  medico-legal  guide. 

ther  consideration  of  the  subject  in  criminal  cases 
may  be  appropriate. 

Whether  a  sound  reason  exists  for  a  distinction 
between  that  direct  and  immediate  insanity,  de- 
lirium or  frenzy,  frequently  produced  by  the 
intemperate  use  of  alcoholic  drinks,  inducing  the 
condition  of  drunkenness,  and  that  mania  or 
delirium  which  sometimes  follows  an  excessive 
use  of  such  drinks,  and  known  as  delirkim  tremens^ 
our  criminal  law  recognizes  a  distinction.  The 
law  in  the  latter  case  does  not  look  to  the  remote 
causes  of  the  mental  disturbance,  and  if  the  act 
is  not  committed  under  the  immediate  influence 
of  intoxicating  drinks,  the  plea  of  insanity  is  not 
invalidated  by  the  fact  that  it  is  the  result  of 
drinking  at  some  previous  time  :  Whart.  C.  L., 
§  48  ;  State  \;.  Birdsall,  1  Beck's  Med.  Jur.  (10th 
ed.)  808  ;  State  v.  Wilson,  Ray's  Med.  Jur.  520  ; 
E.  V.  Watson,  2  Taylor's  Med.  Jur.  599  ;  United 
States  V.  Drew,  5  Mason  (C.  C),  28  ;  E.  v.  Mea- 
kin,  7  C.  &  P.  (Eng.)  297  ;  R.  v.  Runie,  1  Lew. 
C.  C.  (Eng.)  76  ;  Maconahay  v.  State,  5  Ohio 
St.  77  ;  Bales  v.  State,  3  W,  Ya.  685  ;  Carter  v. 
State,  12  Tex.  500;  Smiths;.  Com.,  1  Duval  (Ky.), 
224  ;  United  States  v.  Drew,  5  Mason  (C.  C),  28. 


INSANITY    AND    ITS    LEGAL    RELATIONS.      123 

We  have  already  stated  the  general  doctrine 
on  this  subject  as  follows  :  "  If  a  person  is  en- 
tirely incapacitated  by  delirium  tremens^  so  as 
not  to  be  conscious  of  the  nature  or  moral  turpi- 
tude of  the  act,  he  is  not  punishable  therefor, 
even  though  such  delirium  tremens  is  produced 
by  the  voluntary  use  of  intoxicating  liquor  :  " 
See  vol.  2,  Field's  Lawyers'  Briefs,  §  276  ;  also 
cases  cited  in  the  last  paragraph  ]  also  United 
States  V.  Ciark,  2  Cranch  (U.  S.),  158  ;  United 
States  V,  McClue,  1  Curt.  (C.  C.)  1  ;  Bailey  v. 
State,  26  Ind.  422  ;  40  lud.  263  ;  64  Ind.  435  ; 
O'Brien  v.  People,  48  Barb.  274  ;  Real  v.  People, 
55  Barb.  551;  42  N.  Y.  270;  Lonergan  v. 
People,  6  Parker's  C.  R.  (N.  Y.)  209  ;  5o"Barb. 
266. 

§  59.  Dreaming ;  illusions  and  delusions  common  to. 

It  has  been  observed  that  "  the  phenomena  of 
dreaming  have  a  striking  analogy  to  those  of 
some  forms  of  unsoundness  of  mind.  The  exter- 
nal world  beino^  shut  out,  and  the  his/her  iacul- 
tics  inactive,  illusions  and  delusions  have  the 
vivid  impress  of  reality,  and  follow  each  other 
according  to  associations  over  which  we  have  no 


124  field's  medico-legal  guide. 

control.  Many  dreams  are  directly  traceable  to 
states  of  body  which,  when  we  are  awake,  pro- 
duce pain  and  uneasiness,  such  as  fullness  of 
stomach,  distension  of  bladder,  or  irritation  of 
skin.  The  sleeper  is  conscious  of  this  uneasy 
sensation,  and  seems  seeking  relief  in  unlikely 
ways  and  places,  or  he  associates  it  with  imagin- 
ary events.  Thus  a  fit  of  indigestion  is  converted 
into  a  nightmare ^  and  the  ruffled  dressing  of  a 
blister  on  the  head  su2f2,"ests  a  dream  of  beins^ 
scalped  by  savages.  In  other  instances  the  mi- 
easy  sensation  gives  rise  to  a  dream  which  has  no 
other  relation  to  the  sensation  itself  than  that  of 
being  painful  or  disagreeable  ;  or  to  induce  a 
state  of  mind  in  which  disconnected  occurrences, 
recent  or  remote,  having  nothing  in  common  but 
the  feelino:  of  annovance  or  discomfoit,  are 
blended  together.  We  hear  of  a  distressing  acci- 
dent ;  we  receive  bad  news  from  an  absent 
friend  ;  we  have  been  concerned  in  some  anxious 
business  ;  a  dream  combines  these  scattered  ele- 
ments ;  w^e  are  ourselves  connected  with  the 
accident ;  the  absent  friend  is  in  our  company  ; 
and  the  person  with  whom  the  business  is  trans- 
acted appears  upon  the  scene  :  ''  Guy  &  Ferrer 
on  Forensic  Medicine,  177. 


INSANITY    AND    ITS    LEGAL    RELATIONS.     125 
§  60.  Legal  relations  of  dreaming. 

It  sometimes  occurs  that  a  person  suddenly 
aroused  from  sleep  kills  Jinother,  under  the  in- 
fluence of  his  dream  and  the  impression  of  ne- 
cessity for  self-defense.  Thus  two  men,  beiug 
out  at  night  in  a  place  infested  with  rol^bers, 
engaged  that  one  should  watch  while  the  other 
slept ;  but  the  former  falling  asleep,  and  dream- 
ing that  he  was  pursued,  shot  his  companion 
through  the  heart,  on  being  aroused  from 
his  slumber.  So  in  another  case,  a  person  being 
suddenly  awakened  fiom  sleep  at  midnight, 
thought  he  saw  a  frightful  phantom,  which, 
though  twice  challeno^ed,  o'ave  no  answer  and 
seemed  to  advance  upon  him.  He  attacked  it  with 
a  hatchet,  and  killed  his  wife.  These  and  like 
acts  could  not  reasonably  be  regarded  as  crimi- 
nal :  Guy  &  F.  on  Forensic  M«d.  178. 

§  61.  Somnambulism ;  common  manifestations  of. 

Somnambulism  or  sleep-walking  differs  from 
simple  di-eaming  in  this,  that  although  a  degree 
of  mental  activity  is  common  to  both  conditions, 
the  somnambulist  enjoys  the  use  of  his  senses  in 
some  degree,  and  the  power  of  locomotion.     He 


126  field's  medico-legal  guide. 

is  thereby  enabled  to  perform  manual  operations 
as  well,  frequently,  as  in  his  Avaking  state.  The 
farmer  goes  to  his  barn  and  threshes  his  grain  ; 
the  house  servant  lights  a  fire  and  prepares  the 
breakfast  for  the  family  ;  and  the  scholar  goes  to 
his  desk  and  writes  or  reads.  Usually,  however, 
the  action  of  the  senses  is  more  or  less  imperfect, 
many  of  the  impressions  being  incorrectly  or  not 
at  all  perceived.  The  person  walks  against  a 
wall,  or  stumbles  over  an  object  in  his  path  ;  he 
mistakes  some  projection  for  a  horse,  strides 
across  it,  and  imagines  himself  to  be  riding  ;  he 
hekrs  the  faintest  sound  connected  with  what  he 
is  doing,  while  the  voices  of  persons  near  him, 
and  even  the  blast  of  a  trumpet,  are  entirely  un- 
noticed. Occasionally  the  power  of  the  senses  is 
increased  to  a  degree  unknown  in  the  waking 
state.  Jane  Rid^  whose  remarkable  history  was 
published  some  thirty  years  ago,  could  read  almost 
obliterated  dates  of  coins  in  a  dark  room,  and  was 
able  to  read  and  write  while  her  eyes  were  cov- 
ered with  several  folds  of  handkerchief.  For  the 
most  part,  however,  the  operations  of  the  som- 
nambulist consist  in  getting  up  while  asleep, 
groping  about  in  the  dark,  endeavoring  to  make 


INSANITY    AND    ITS   LEGAL    RELATIONS.       127 

his  way  out  of  the  house  through  doors  and 
windows,  making  some  inarticulate  sounds,  per- 
haps, and  all  the  while  unconscious  of  the  persons 
and  things  around  him.  The  power  of  the  per- 
ceptive faculties,  as  well  as  that  of  the  senses,  is 
sometimes  increased  in  a  wonderful  dejjree.  It 
is  related  of  the  girl  just  mentioned  that  in  the 
fit  she  would  sing  correctly,  and  pUiy  at  back- 
gammon with  considerable  skill,  though  she  had 
never  done  either  when  awake  :  Guy  &  Fer.  on 
For.  Med.  178  ;   Ray's  Med.  Jur. 

^  62.  The  legal  relations  of  somnambulism. 

The  legal  relations  of  somnambulism  sheuld 
be  precisely  those  of  insanity.  The  party  should 
be  held  exempt  from  criminal  liability  for  acts 
done  in  that  condition,  but  liable  in  damages  for 
his  torts.  Criminal  acts  have  been  committed  in 
a  state  of  sonniambulism  by  persons  of  irre- 
proachable character  :  Whart.  &  S.  Med.  Jur., 
§472  ;  Gray  &  F.  on  Forensic  Med.  265  ;  Rush 
on  the  Mind,  302. 

§  63.  Statutory  provisions  relating  to  the  responsibility  of 
persons  mentally  unsound. 
In  various  states  there  are  statutory  provisions 
relating  to  the  responsibility  of  persons  of  un- 


128  field's  medico-legal  guide. 

sound  mind,  although  they  generally  only  declare 
the  common  law  on  the  subject :  See  ante,  §§22, 
23  ;  2  Field's  L.  B.,  §§  270-279.  Thus  the 
Penal  Code  of  New  York  provides  as  follows: 

"  §  20.  An  act  done  by  a  person  who  is  an  idiot, 
imbecile,  lunatic  or  insane  is  not  a  crime.  A 
person  cannot  be  tried,  sentenced  to  any  punish- 
ment or  punished  for  any  crime  while  he  is  in  a 
state  of  idiocy,  imbecility,  lunacy  or  insanity,  so 
as  to  be  incapable  of  understanding  the  proceed- 
ing or  making  his  defense. 

"  §  21.  A  person  is  not  excused  from  criminal 
liability  as  an  idiot,  imbecile,  lunatic  or  insane 
person,  except  upon  proof  that,  at  the  time  of 
committing  the  alleged  criminal  act,  he  was  labor- 
ing under  such  a  defect  of  reason  as  either, 

"  1.  Not  to  know  the  nature  and  quality  of  the 
act  he  was  doing  ;   or 

"2.  Not  to  know  that  the  act  was  wrong. 

"  §  22.  No  act  committed  by  a  person  while  in 
a  state  of  voluntary  intoxication  shall  be  deemed 
less  criminal  b}^  reason  of  his  having  been  in  such 
a  condition.  But  whenever  the  actual  existence 
of  any  particular  purpose,  motive  or  intent  is  a 
necessary  element  to  constitute  a  particular  species 


INSANITY    AND    ITS    LEGAL    RELATIONS.      121) 

or  degree  of  crime,  the  jury  may  take  into  con- 
sideration the  fact  that  the  accused  Avas  intoxi- 
cated at  the  time  in  determining  the  purpose, 
motive  or  intent  with  which  he  committed  the 
act. 

"  §  23.  A  morbid  propensity  to  commit  prohib- 
ited acts,  existing  in  the  mind  of  a  person  who  is 
not  shown  to  have  been  incapable  of  knowing  the 
Avrongfulness  of  such  acts,  forms  no  defense  to  a 
prosecution  therefor." 

§  64.  Construction   of   statutes   and  the  common  law  on 
the  subject. 

Insanity  occasioned  by  previous  habits  of  in- 
temperance, and  not  resulting  directly  from  the 
immediate  use  of  intoxicating  liquors,  as  in  case 
of  delirium  tremens,  exempts  the  victim  from  crim- 
inal responsibility  for  his  acts  :  Ante,  §§  56,  57  j 
O'Brien  v.  People,  48  Barb.  (N.  Y.)  274  ;  see 
also  2  Field's  L.  B.,  §§  210-21^  ;  Kenny  v.  Peo., 
31  N.  Y.  330  ;  Lonergan  v.  People,  50  Barb. 
266  ;  6  Park.  209  ;  Freery  v.  People,  54  Barb. 
319  ;  Com.  v.  Hawkins,  5  Gray  (Mass.),  463. 

A  person  may  be  insane  at  the  time  of  the 
conunission  of  the  criminal  act,  or  he  may  be  in- 
sane at  the  time  he  is  called  to  make  a  defense 


130  field's  medico-legal  guide. 

thereto.  In  the  former  case  he  would  not  be 
responsible  ;  but  if  sane  at  the  time  he  is  called 
to  make  a  defense  he  must  interpose  the  insanity 
as  a  defense.  In  case  he  is  insane  at  the  time  of 
trial,  he  cannot  be  required  to  make  a  defense. 
The  common  law,  if  not  the  statutes,  requires,  in 
ease  of  a  suggestion  or  plea  of  insanity,  or  in 
case  such  a  mental  condition  is  manifest,  the 
court  to  appoint  a  commission  or  impanel  a  jury 
to  inquire,  in  a  preliminary  way,  into  the 
mental  condition  of  the  accused,  and  to  deter- 
mine whether  the  accused  be  sane  or  insane, — 
whether  comj)os  mentis  or  non  compos  mentis^ — and 
if  they  find  for  the  accused  the  trial  will  be  sus- 
pended :  Arch.  C.  L.  (Watt.  Notes,  7th  ed.)  27; 
1  Whart.  C.  L.,  §  53  ;   2  Field's  L.  B.,  §  277. 

And  a  finding  upon  such  a  preliminary  issue 
that  the  prisoner  is  sane  and  capable  of  making 
a  defense,  has  no  bearing  upon  the  question  of 
his  responsibility  for  the  crime  with  which  he  is 
charged  :  Freeman  v.  People,  4  Denio  (N.  Y.), 
9.  A  lunatic  is  responsible  for  a  crime  com- 
mitted during  a  lucid  interval ;  but  mere  weak- 
ness of  intellect,  not  amounting  to  insanity,  will 
not  exempt  from  criminal  responsibility  in  the 


INSANITY   AND    ITS    LEGAL    RELATIONS.      131 

present  stage  of  our  legal  development :  Clarke's 
Case,  1  C.  H.  (N.  Y.)  176  ;  Patterson  v.  People, 
46  Barb.  (N.  Y.)  625  ;  cmte,  §§  54-56.  But  if  it 
appears  that  the  accused  has  been  insane,  on 
general  principles  of  the  law,  this  condition  of 
mind  would  be  presumed  to  continue  until  the 
contrary  is  shown,  and  it  would  devolve  upon 
the  prosecution  to  show  that  the  accused  was 
sane  at  the  time  of  the  commission  of  the  act 
charged  as  criminal  :  Ante^  §§  45,  46  ;  People 
V.  Montgomery,  13  Ab.  Pr.,  N.  S.  (N.  Y.)  207. 

In  New  York  it  has  been  held  that  if  the 
accused  knew,  at  the  time  of  doing  an  act,  that 
it  was  criminal,  and  that  he  was  committing  a 
crime  which  Avas  legally  and  morally  wrong,  he 
is  responsible  :  Willis  v.  People,  32  N.  Y.  715  ; 
5  Park.  C.  R  621  ;  Flannagan  v.  People,  52 
N.  Y.  467;  People  v.  Kline,  Edm.  S.  C.  (N.  Y.) 
13  ;  People  v.  Moett,  23  Hun  (N.  Y.),  60  ; 
People  V.  Sprague,   2  Park.  C.  R.  43. 

A  mere  frenzy,  without  total  derangement, 
will  not  exempt  the  person  from  criminal  re- 
sponsibility: Pierrow's  Case,  3  C.  H.  Rec.  (N. 
Y.)  123;  see  also  Sanchez  v.  People,  22  N.  Y. 
147  ;  4  Park.  C.  R.  (N.  Y.)  535.     And  volun- 


132  FIELD  S    MEDICO-LEGAL    GUIDE. 

tary  intoxication,  though  amounting  to  frenzy, 
is  no  defense  to  a  homicide  committed  without 
provocation:  Ante,  §  57  ;  People  v.  Rogers,  18 
N.  Y.  9  ;  9  Park.  C.  E.  (332  ;  Kennj-  v.  People, 
31  N.  Y.  330  ;  People  v.  Eastwood,  3  Park.  25: 
Rafferty  v.  People,  66  111.  118  ;  State  v.  Har- 
low, 21  Mo.  446  ;  Shannahan  v.  State,  8  Bush 
(Ky.),  463  ;  Charce  v.  State,  31  Ga.  424  ; 
Humphreys  v.  State,  45  Ga.  190. 

And  if  the  accused  at  the  time  he  did  the 
criminal  act  was  in  such  a  state  of  mind  as  to 
know  that  it  Avas  morally  wrong  and  unlawful, 
he  would  be  criminally  responsible,  unless  it  was 
the  result  of  an  irresistible  impulse  or  insane 
delusion  :  A7ite,  §§  50-54  ;  6  Field's  Lawyers' 
Briefs,  §§  440-444  ;  Willis  v.  People,  32  N.  Y. 
715  ;  5  Park.  C.  R.  (N.  Y.)  621  ;  Flannagan  v. 
People,  52  N.  Y.  467  ;  People  v.  Sprague,  2 
Park.  C.  R.  (N.  Y.)  43. 

Evidence  of  intoxication,  both  at  common 
law  and  under  statutes,  is  always  admissible  to 
explain  the  conduct  and  intent  of  the  accused  : 
People  V.  Hanmiill,  2  Park.  C.  R.  (N.  Y.)  223  ; 
Lonegran  v.  People,  6  Park.  C.  R.  209;  People 
V.  Rogers,   18   N.  Y.  9.     And   this   would   fre- 


INSANITY.  AND    ITS    LEGAL    RELATIONS.       133 

queiitly  be  material  for  the  purpose  of  establish- 
ing the  grade  of  the  crime  :  People  v.  Batting, 
49  Ho\Y.  (N.  Y.)  392  :   ante,  §  62. 

§  65.  Rules  suggested  on  examination  of  mental  condition. 

Drs.  Ray  and  Ferrie,  in  their  valuable  treatise 
on  Forensic  Medicine,  sus^o-est  the  followino-  rnles 
for  the  o'uidance  of  the  medical  man  in  the  ex- 
amination  of  persons  in  various  cases  supposed 
to  have  want  of  mental  cai)acity  or  to  be  of  un- 
sound mind  : 

"1.  Observe  narrowly  the  general  appearance, 
conformation,  and  shape  of  the  head;  the  com- 
plexion and  expression  of  the  countenance  ;  the 
gait  and  movements,  and  the  speech. 

"  2.  Ascertain  the  jstate  of  the  health,  of  the 
appetite  and  digestion,  of  the  tongue,  skin  and 
pulse.  Notice  especially  the  presence  or  absence 
of  fel)rile  symptoms,  as  distinguishing  delirium 
from  madness.  Ascertain  whether  there  is  sad- 
ness or  excitement,  restlessness  or  stillness,  and 
whether  the  sleep  is  sound  and  continuous,  or 
disturbed  and  broken.  In  females,  inquire  into 
the  state  of  the  menstrual  function. 

"  3.  The  family  history  should  be  traced  out 
in  order  to  asceitain  whether  thei'e  is  any  hered- 


134  field's  medico-legal  guide. 

itaiy  predisposition  to  insanity,  and  whether 
other  members  of  the  family  have  been  subject 
to  fits,  or  have  betrayed  marked  eccentricit}^  of 
behavior. 

' '  4.  The  personal  history  should  be  ascertained 
with  equal  care.  If  the  mind  appear  unsound, 
ascertain  whether  the  unsoundness  dates  from 
birth,  from  infancy,  or  from  what  time.  If  the 
unsoundness  have  supervened  later  in  life,  whether 
it  followed  severe  bodil}^  illness,  accident,  mental 
shock,  long  continued  anxiety  of  mind,  repeated 
epileptic  fits,  or  indulgence  in  habits  of  hitemper- 
ance,  or  in  solitary  vice. 

"5.  Inquire  whether  the  present  state  of  the 
mind  difters  from  that  which  existed  when  it  was 
reputed  to  be  sound  ;  and  whether  the  feelings, 
afiections,  and  domestic  habits  have  undergone  a 
change.  * 

"  6.  Ascertain  whether  the  existing  unsound- 
ness is  a  first  attack,  and  if  so,  whether  it  began 
with  oppression  or  excitement  ;  if  not,  did  the 
first  seizure  follow  a  period  of  melancholy,  pass- 
ing then  into  mania,  and  then  into  slow  convales- 
cence ?  If  any  signs  of  any  general  paralysis  are 
present  in  speech  or  gait,  has  .the  patient  squan- 


INSANITY    AND    ITS    LEGAL    RELATIONS.      135 

derecl  his  money,  grown  restless,  and  wandered 
about,  exposed  his  person,  committed  petty  thefts, 
or  had  delusions  of  wealth  and  grandeur  ? 

"  7.  When  our  object  is  to  ascertain  the  mental 
capacity,  it  must  be  tested  by  the  conversation 
directed  to  such  matters  as  age,  the  birth-place, 
profession,  or  occupation  of  parents,  number  of 
brothers,  sisters,  and  near  relations,  common 
events,  remote  and  recent,  the  year,  name  of  the 
month,  and  day  of  the  week,  the  name  and  family 
of  the  sovereign,  and  of  persons  best  known  and 
most  talked  of.  The  power  of  performing  oper- 
ations of  arithmetic,  and  the  knowledge  of  the 
value  of  money  should  be  tested,  and  the  memory 
by  repeating  simple  forms  of  words  in  general 
use,  such  as  the  Lord's  Prayer.  In  testing  the 
]30wer  of  attention,  merely  negative  or  affirmative 
answers  to  leading  questions  should  be  distin- 
guished from  such  replies  as  indicate  judgments 
and  reflection.  If  the  inquiry  relate  not  to  the 
capacity  of  the  mind,  but  to  its  unsoundness  in 
other  respects,  delusion  should  be  sought  for  by 
conversations  directed  to  the  topics  most  likely 
to  interest  and  excite  the  mind.  The  state  of  the 
moral  feelings  will  be  tested  by  conversation  di- 


136  field's  medico-legal  guide. 

reeled  to  relatives  and  friends.  In  cases  of  sup- 
posed moral  insanity,  diligent  inquir}^  should  be 
made  into  the  motives  which  mio^ht  have  led  to 
the  commission  of  the  act  of  which  the  party  is 
accused. 

"  8.  The  medical  man  should  insist  on  full 
opportunity  being  given  him  of  forming  his 
opinion.  He  should  rarely  be  content  with  a 
single  visit,  and  in  difficult  cases  should  require 
that  the  party  be  placed  for  some  time  under  his 
observation. 

"  9.  When  undergoing  examination  in  a  court 
of  law,  the  medical  witness  is  recommended  to 
avoid  all  definitions  of  insanity,  on  the  plea  that 
mental,  like  bodily  diseases,  do  not  admit  of  defi- 
nition, but,  in  common  with  many  familiar  ob- 
jects, can  be  recognized  but  not  described  :"  See 
also  Quain's  Die.  of  Med.  (Am.  ed.),  sub.  Civil 
Incapacity,  p.  259. 


CHAPTER  IV. 

PRIVILEGED    COMMUNICATIONS. 

§  66.  At  common  laTV,  between  attorney  and  client. 

At  common  law  confidential  communications 
between  attorney  and  client,  relating  to  matters 
of  professional  employment,  on  groimds  of  pub- 
lic policy,  cannot  be  divulged  by  either  on  the 
witness  stand,  without  the  consent  of  the  other. 
And  courts  will  interpose  to  protect  parties  en- 
titled to  the  privilege  :  See  Cohen  v.  Ins.  Co., 
41  N.  Y.  Superior  Ct.  R.  296  ;  1  Field's  Law- 
yers' Briefs,  §  473-479  ;  3  id.  300  ;  1  Whart. 
C.  L.  (7th  ed.),  §  775  ;  1  Greenl.  on  Ev.  (13th 
ed.),  §§  239-246.  But  if  a  party  to  a  suit  offers 
himself  as  a  witness,  he  cannot,  upon  cross-exam- 
ination, refuse  to  answer  questions  as  to  any 
conversation  with  his  counsel,  testified  to  in  his 
direct  examination  :  Inhabitants,  etc.,  v.  Hen- 
shaw,  101  Mass.  193  ;  3  Am.  Rep.  333. 

The  same  public  policy  would  seem  to  require 
h  e  protection  of  confidential  communications 
between  clergymen  or    priests   and  laymen,  as 


138         field's  medico-legal  guide. 

where  the  guilty  conscience  disburdens  itself  by 
penitential  confessions,  and  by  spiritual  advice, 
instruction  and  discipline,  seeks  pardon  and  relief. 
But  the  common  law  does  not  protect  such  com- 
munications :  1  Greenl.  on  Ev.  (13th  ed.),  §  247  ; 
1  Whart.  C.  L.  (7th  ed.),  §  775. 

Nor  does  the  common  law  of  England,  or  of 
this  country,  protect  similar  communications 
made  between  physicians  or  surgeons  ;  and  in 
the  absence  of  statutory  provisions  to  the  con- 
trary, they  may  be  required  as  witnesses,  to  dis- 
close information  acquired  in  professional  confi- 
dence, and  even  where  it  was  necessary  for 
proper  advice  or  treatment  of  the  patient  :  1 
Greenl.  on  Ev.  (13th  ed.)  248  ;  Whart.  on  C.  L. 
(7th  ed.)  774  ;  Duchess  of  Kingston's  Case,  11 
Harg.  St.Tr.(Eng.)  243  ;  20  How.  St.  Tr.  (Eng.) 
613  ;  Eex  v.  Gibbons,  1  C.  &  P.  (Eng.)  97  ;  1 
Phil,  on  Ev.  (7th  ed.)  147  ;  Broad  v.  Pitt,  3  C. 
&P.  (Eng.)  518  ;  Dixon  v.  Parmelee,  2  Vt.  185  ; 
Sherman  v.  Sherman,  1  Root  (Ct.),  486. 

§  67.  Protection  of  confidential  communications  by  stat- 
utes. 

The  statutes  of  various  states  make  not  only 
confidential  communications  to  a  physician  or 


TEIVILEGED    COMMUNICATIONS.  139 

surgeon  by  his  patient,  but  by  a  layman  to  a 
clergyman  or  priest,  privileged,  and  they  cannot 
be  revealed  when  they  are  called  as  witnesses. 

The  statute  of  New  York  provides  as  follows  : 
"  A  person  duly  authorized  to  practice  phj'sic 
or  surgery  shall  not  be  allowed  to  disclose  any 
information  which  he  acquired  in  attending  a 
patient  in  a  professional  capacity,  which  was  nec- 
essary to  enable  him  to  act  in  that  capacity  :  " 
N.  Y.  Code  of  Civ.  Proc,  §  834  ;  see  also  2  R. 
S.  N.  Y.  406,  §  73. 

In  New  York  it  has  been  held  that,  under  the 
statute,  it  is  not  essential  that  the  relation  of 
physician  and  patient  should  actually  exist, 
but  it  is  sufficient  if  the  physician  visits  a  person 
under  such  circumstances  as  to  lead  the  latter  to 
believe  that  the  visit  was  a  professional  one,  and 
to  induce  the  patient  to  make  disclosures  on  the 
strength  of  such  belief :  People  v.  Stout,  3  Park. 
C.  K.  (N.  Y)  610  ;  Edington  v.  Ins.  Co.,  67  N. 
Y.  185. 

It  may  be  observed  that  if,  as  between  attor- 
ney and  client,  a  communication  is  privileged,  it 
cannot  be  disclosed  by  the  party  to  whom  it  is 
communicated,  when  called  as  a  witness,  either 


140  field's   MEDICO-LEO  at.    CJUIDE. 

in  a  civil  or  criminal  proceeding.  And  the  priv- 
ilege is  not  limited  to  oral  discourse,  but  covers 
all  disclosures  by  writings,  documents,  books, 
papers,  pictures  or  other  visible  or  material  ob- 
jects :  Crosby  v.  Berger,  11  Paige  (N.  Y.),  377  ; 
1  Field's  Lawyers'  Briefs,  §§  474,  476  ;  Durkee 
V.  Leland,  4  Vt.  612  ;  Lynde  v.  Judd,  3  Day 
(Conn.),  499  ;  Kelogg  v.  Kelogg,  6  Barb.  (N.  Y.) 
116  ;  People  v.  Benjamin,  9  How.  (N.  Y.)  419. 

The  same  doctrine  would  be  applicable  to  the 
relation  of  physician  and  patient :  Eddington  v. 
Life  Ins.  Co.,  67  N.  Y.  185  ;  ante,  §  m. 

Statutes  of  a  similar  character  may  be  found 
in  Michigan,  Lidiana,  Iowa,  Wisconsin,  Missouri 
and  other  states. 

§  68.  Protection  of  confidential  communications  made  to 
clergymen  or  priests. 
In  many  of  the  states  will  be  found  statutory 
provisions,  similar  to  the  one  in  New  York,  pro- 
tecting confidential  commimications  made  to 
clergymen  or  priests,  in  certain  cases,  and  mak- 
ing them  privileged.  The  New  York  statute  is 
as  follows  :  *'  No  minister  of  the  gospel  or  priest 
of  any  denomination  whatsoever  shall  be  allowed 
to  disclose  any  confession  made  to  him  in  his 


PRIVILEGED    COMMUNICATIONS.  141 

professional  character  in  the  course  of  discipline 
enjoined  b^^  the  rules  or  practice  of  such  denomi- 
nation :  "  2  Kev.  Stat.  N.  Y.  403,  572. 

In  Ohio,  Missouri  and  other  states  they  have 
a  similar  statute. 

§  69.  The  privilege  may  be  waived. 

The  patient  may,  it  seems,  waive  the  privilege 
thus  secured  to  him  by  the  statute,  and  permit 
his  medical  adviser  or  attendant  to  disclose  the 
communication  :  Johnson  v.  Johnson,  14  Wend. 
(N.  Y.)  637.  And  if  a  party  makes  himself  a 
witness  he,  it  seems,  cannot  refuse  on  cross-ex- 
amination to  testify  as  to  communications  made 
to  his  legal  or  medical  adviser,  on  the  ground  of 
privilege  :  See  Inhabitants,  etc.,  v.  Henshaw, 
supra.  In  this  respect  the  law  is  the  same, 
whether  the  privilege  be  in  favor  of  a  patient  or 
client :  See  1  Field's  Lawyers'  Briefs,  sub.  At- 
torney and  Client,  §  473. 

§  no.  Construction  of  the  statutes  on  the  subject. 

The  full  scope  and  effect  of  a  statute  is  not 
always  known  with  certainty  until  it  has  been 
interpreted  and  construed  by  the  courts.  Then 
the  statute,  with  the  interpretation  of  it,  becomes 


142  field's  medico-legal  guide. 

the  law  of  the  state,  as  a  general  rule.  In  con- 
struing the  statute  of  New  York,  prohibiting  a 
physician  or  surgeon  from  disclosing  any  infor- 
mation wliich  lie  acquired  in  attending  a  patient 
in  a  professional  capacity,  and  which  was  neces- 
sary to  enable  him  to  act  in  that  capacity,  it  has 
been  held  that  the  provision  includes  not  only 
information  obtained  from  the  statements  of  the 
patient,  but  such  as  may  be  conveyed  by  others 
present  at  the  time,  or  obtained  from  his  own 
observations  of  the  patient's  symptoms  and  ap- 
pearance ;  and  that  it  will  be  presumed  that  in- 
formation so  imparted  or  acquired  was  given  or 
obtained  for  the  purpose  of  enabling  the  physician 
to  prescribe  for  the  patient,  and  that  it  was 
material.  And  it  has  been  further  held  that  tlie 
right  of  objecting  to  the  disclosure  of  such  privi- 
leged communications  is  not  limited  to  the  patient 
and  his  personal  representatives,  but  that  a  third 
party  may  avail  himself  of  it,  such  as  an  as- 
signee of  the  party,  where  his  rights  may  *be 
affected  by  the  communication  :  Edington  v. 
Mut.  Life  Ins.  Co.,  67  N.  Y.  185  ;  see  also 
Dilleber  v.  Home  Life  Ins.  Co.,  69  N.  Y.  256; 
Westover  v.  Mtim  Life  Ins.  Co.,  99  N.  Y.  hQ. 


PRIVILEGED    COMMUNICATIONS.  143 

^In  the  case  last  cited,  Earle,  J.,  after  refer- 
riiia'  to  the  statutes  of  New  York  restrain] no' 
clergymen,  attorneys  and  counselors  at  law,  and 
physicians  and  surgeons,  from  disclosing  confi- 
dential communications  made  to  them  in  their 
professional  character,  observes  as  follows:  "It 
is  thus  seen  that  clergymen,  physicians  and  at- 
torneys are  not  only  absolutely  prohibited  from 
making  the  disclosures  mentioned,  but  that  by 
an  entirely  new  section  it  is  provided  that  the 
seal  placed  upon  such  disclosures  can  be  removed 
only  by  the  express  waiver  of  the  persons  men- 
tioned. Thus,  there  does  not  seem  to  be  left 
any  room  for  construction.  The  sections  are 
absolute  and  unqualified.  These  provisions  of 
the  law  are  founded  upon  public  policy,  and  in 
all  cases  where  they  apply,  the  seal  of  the  laAV 
must  forever  remain  until  it  is  removed  by  the 
person  confessing,  or  the  patient  or  the  client :" 
See  also  Grattan  v.  Life  Ins.  Co.,  80  N.  Y.  281. 

§  71.  The  general  rule  applicable  to  other  professions. 

Under  statutes  in  various  states,  as  we  have 
noticed,  the  general  principles  of  the  law  pro- 
tecting confidential  and  professional  communica- 


144  field's  medico-legal  guide. 

tioiis  between  attorney ^ancl ""client,  have  been  ex- 
tended to  similar  communications  between  a 
clergyman  or  priest  and  the  confessor  or  peni- 
tent, and  between  the  physician  or  surgeon  and 
his  patient. 

§  72.  Illustration  of  the  riile  in  case  of  surgeons. 

Upon  the  trial  of  an  indictment  in  New  York, 
in  1865,  for  abortion,  the  evidence  on  the  part 
of  the  prosecution  tended  to  show,  that  the  de- 
fendant, arranged  with  one  Dr.  S.  to  perform  an 
operation  to  procure  an  abortion,  and  took  the 
female  to  the  office  of  said  doctor,  where  the 
operation  was  performed ;  that  the  defendant 
then  took  her  to  a  boarding-house  and  arranged 
for  her  board  and  care  until  she  recovered  from 
her  sickness,  and  paid  the  bill.  After  the  dis- 
covery of  the  circumstances  of  the  case,  the  dis- 
trict-attorney sent  a  physician  to  attend  upon  the 
girl,  and  he  called  upon  her  and  made  an  examin- 
ation of  her  person  and  prescribed  for  her.  Upon 
the  trial  the  said  physician  was  called  as  a  witness 
for  the  prosecution,  and  was  permitted  to  give 
his  opinion,  under  objection  and  exception,  that 
an  abortion  had  been  performed,  founded  upon 


PRIVILEGED    COMMUNICATIONS.  145 

personal  examination  so  made  by  him,  and  upon 
what  tiie  fi^iii  told  him  in  reojard  to  the  matter. 
It  appeared  that  the  girl  was  alive  at  the  time  of 
the  trial. 

On  appeal,  the  admission  of  this  testimony  was 
held  to  be  error  ;  that  the  fact  that  the  physician 
was  selected  and  sent  by  the  public  prosecutor  to 
attend  upon  the  female  did  not  affect  the  ques- 
tion, as  she  accepted  his  services  in  his  profes- 
sional character,  and  the  relation  of  physician 
and  patient  was  established  between  them  :  Peo. 
V.  Murphy,  101  JST.  Y.  126  ;  Grattan  v.  Life  Ins. 
Co.,  80  N.  Y.  281 ;  15  Hun,  74.  On  this  sub- 
ject see  also  1  Beck's  Med.  Juris.  288-331 ;  2 
Whart.  &  S.  Med.  Jur.,  §  84  j  2  Whart.  C.  L., 
§  1220  ;  Eos.  C.  Ev.  190  ;  Dilliber  v.  Home  Ins. 
Co.,  69  N.  Y.  258  ;  Westover  v.  Etna  Life  Ins. 
Co.,  99  N.  Y.  56.  As  to  the  common  law  see  1 
Greenl.  on  Ev.,  §  248  ;  1  Whart.  Crim.  L.  774  ; 
Duchess  of  Kingston,  20  How.  St.  Tr.  (Eng.)  613; 
Phil.  Ev.  (7th  ed.)  147.  As  to  expert  testimony 
see  1  Whart.  Crim.  L.,  §§  45,  49,  821a,  821^. 

In  reference  to  such  communications  between 
attorney  and  client  it  is  observed  by  Mr.  Greenleaf : 
' '  The  protection  given  by  the  law  to  such  commu- 


146         field's  medico-legal  guide. 

iiications  does  not  cease  with  the  termination  of  the 
suit  or  other  litigation,  nor  is  it  affected  by  the 
party  ceasing  to  employ  the  attorney  to  which  the 
communication  was  made  and  retaining  another, 
nor  by  any  other  change  of  relations  between  them, 
nor  by  the  death  of  the  client.  The  seal  of  the 
law  once  fixed  upon  them  remains  forever,  unless 
removed  by  the  party  himself  in  whose  favor  it 
was  then  placed.  It  is  not  removed  without  the 
client's  consent,  even  though  the  interests  of 
criminal  j  iistice  may  seem  to  require  the  produc- 
tion of  the  evidence  :  "  1  Greenl.  on  Ev.  243 ; 
see  also  Brown  v.  Payson,  6  N.  H.  444 ;  Com.  v. 
Swan,  30  Conn.  6  ;  Flack  v.  Null,  26  Tex.  273. 
Under  statutory  provisions  protecting  profes- 
sional and  confidential  communications  made  to  a 
priest,  clergyman,  physician  or  surgeon  the  same 
rule  would  seem  to  apply.  And  this  seal  of  con- 
fidence would  undoubtedly  be  placed  upon  the 
mouth  of  an  interpreter  employed  to  translate 
such  communications  :  See  Jackson  v.  French, 
3  Wend.  337  ;  Parker  v.  Carter,  4  Mumf.  (Va.) 
273  ;  and  to  private  secretaries  and  clerks  :  See 
Taylor  v.  Foster,  2  C.  &  P.  (Eng.)  195  ;  Fort  v. 
Hayne,  1  C.  &  P.  545  ;  Landsberger  v.  Gorham, 
5  Cal.  450  ;  Sibley  v.  Waffle,  16  N.  Y.  180. 


CHAPTER  Y. 

ABORTION. 
§  73.  Defined  ;  quick  with  child  explained. 

Abortion  is  defined  as  the  expulsion  of  the 
foetus  at  a  period  of  utero-gestation  so  early  that 
it  has  not  acquired  the  power  of  independent 
life  :  Bouv.  L.  D.,  Ahortion  ;  Quahi's  Die.  of 
Med.  3. 

By  the  common  law  of  England  an  attempt  to 
destroy  a  child,  en  ventre  sa  mere^  was  a  misde- 
meanor ;  and  in  case  of  the  death  of  the  child  it 
was,  at  an  early  period,  held  to  be  murder  : 
Rose.  Cr.  Ev.  (4th  Lond.  ed.)  260  ;  1  Rose.  C.  L. 
(3d  Lond.  ed.)  671  ;  2  Whart.  C.  L.,  §  1220. 
But  the  English  law  on  this  subject,  it  seems,  has 
never  been  fully  adopted  in  this  country  ;  and  in 
the  absence  of  statutory  regulations  to  the  con- 
trary it  is  not  a  criminal  offense  in  this  country 
to  administer  a  drug,  or  to  perform  an  operation 
upon  a  pregnant  woman,  by  her  request  or  with 
her  consent,  with  the  intention  and  for  the  pur- 


148         field's  medico-legal  guide. 

pose  of  causing  an  abortion  and  premature  birth 
of  the  foetus  of  which  she  is  pregnant,  and  by 
means  of  which  an  abortion  is  in  fact  accom- 
plished, unless  at  the  time  of  the  administration 
of  the  drug  or  the  performance  of  such  opera- 
tion such  woman  was  quick  with  child  :  See 
Com.  V.  Wood,  11  Gray,  419  ;  Wilson  v.  State, 
22  Ohio,  319  ;  Euss.  on  Crimes,  671  ;  15  la.  177; 
Evans  v.  People,  49  N.  Y.  86. 

The  term  "  quick  with  child,"  in  the  sense  here 
used,  is  the  sensation  the  mother  has  of  the  motion 
of  the  child  she  has  conceived.  The  period  at 
which  the  mother  first  experiences  a  quickening 
or  motion  of  the  child  may  vary  with  different 
persons  or  under  different  circumstances.  The 
child  is  in  fact  alive  from  the  first  moment  of 
conception,  and,  according  to  its  age  and  state  of 
development,  the  foetus  has  dififerent  modes  of 
manifesting  its  life,  and  during  a  portion  of  the 
period  of  gestation,  by  its  motion.  By  the 
growth  of  the  embryo,  the  womb  is  enlarged  until 
it  becomes  too  great  a  size  to  be  contained  in  the 
pelvis.  It  then  rises  to  the  abdomen,  when  the 
motion  of  the  foetus  is  for  the  first  time  felt.  The  . 
period  when  quickening  is  first  experienced  or 


ABORTION.  149 

# 

observed  varies  from  the  tenth  to  the  twenty-fifth 
week  after  conception  ;  but  usually  it  occurs 
about  the  sixteenth  week :  Denman  bn  Miclw. 
129;   1  Leg.  Gaz.  Rep.  (Pa.)  183. 

Life  of  the  foetus  is  said  to  commence  when  a 
woman  first  becomes  quick  with  child  ;  and  pro- 
curing an  abortion  after  that  period  is  man- 
slaughter by  the  more  modern  common  law  of 
England,  as  well  as  by  statutes.  The  common 
law  did  not  interfere  to  prevent  women  convicted 
of  a  capital  offense  from  being  executed,  unless 
they  were  "  quick  with  child :  "  2  Hale  PI.  Cr. 
413.  But  this,  as  it  will  be  observed,  is  quite  an 
arbitrary  rule  ;  and  there  would  appear  to  be  no 
ground  for  making  this  particular  point  of  time 
in  foetal  development  the  pivot  upon  which  such 
important  results  and  responsibilities  are  made  to 
hinoje.  The  followino-  distinctions  relatinsf  to  this 
subject  have  been  approved  :  "  Quick  with  child, 
is  having  conceived  ;  with  quick  child,  is  Y\^here 
the  child  has  quickened  :  "  8  C.  &  P.  (Eng.)  265; 
1  Leg.  Gaz.  Rep.  (Pa.)  183  ;  see  26  Am.  Dec. 
60  n.  ;   2  Whart.  &  St.  Med.  Jur.  1230. 

Dr.  Alexander  Russell  Simpson,  in  his  valua- 
ble article  on  the  subject  of  Miscarriage,  found 


150  field's  medico-legal  guide. 

in  Quain's  Dictionary  of  Medicine,  referring  to 
the  maternal  causes  of  miscarriasje,  observes  as 
follows  :  '*'  The  causes  of  miscarriage  on  the  part 
of  the  mother  are  either  general  or  local. 
Amongst  the  general  or  constitutional  conditions 
that  favor  the  occurrence  of  abortion  we  note  : 
Firstly.  All  the  causes  that  lead  to  depres- 
sion of  a  woman's  health.  Abortions  are  fre- 
quent, for  instance,  in  times  of  famine — amongst 
women  who  yield  themselves  to  excesses ;  in 
anaemic  women,  and  in  those  tainted  with  syphi- 
litic poison.  Often  enough,  especially  in  the  last 
class,  the  cause  of  the  abortion  can  be  traced  to 
some  morbid  change  in  the  maternal  portion  of 
the  placenta  ;  but  sometimes  it  seems  to  be  due 
simply  to  the  impure  or  impoverished  condition 
of  the  patient's  bk)od.  Secondly.  Fevers,  such 
as  the  zymotic  fevers,  and  acute  inflammations, 
more  particularly  of  important  viscera,  such  as 
pneumonia,  occurring  in  gravid  women,  very 
frequently  become  complicated  by  al)ortiou, 
Tldrdly.  Shock  may  bring  on  miscarriage, 
whether  operating  simply  through  the  nervous 
system,  of  which  we  meet  0(;casional  examples  ; 
or,  as  is  more  frequently  the  case,  by  producing 


ABORTION.  151 

a  more  direct  physical  impression  upon  the 
uterus,  as  in  cases  where  the  patient  leaps  or 
steps  suddenly  down  from  a  height,  or  lifts  a 
weight,  stretches  her  arms  above  her  head,  or  is 
exposed  to  any  sudden  jar  or  more  protracted 
jolting.  Though  many  cases  of  abortion  are  at- 
tributed to  such  a  cause,  it  is  always  to  be  borne 
in  mind  that  in  some  of  these,  at  least,  that  sup- 
posed cause  w^ould  not  have  led  to  the  disaster 
unless  there  had  already  existed  a  predisposition 
in  some  morbid  condition  of  the  uterus  or  its 
contents. 

"  Amongst  the  local  causes  we  find,  first,  and 
most  frequently,  diseased  conditions  of  the  de- 
cidu88.  Commonly  in  these  cases  the  patient 
had  previously  been  the  subject  of  chronic  en- 
dometritis ;  though  occasionally  cases  are  met 
wdth  where  there  have  been  no  marked  symp- 
toms previously,  and  the  generative  process  may 
affect  either  the  vera,  or  reflexa,  or  serotina  sepa- 
rately or  simultaneously.  Second  in  frequency, 
under  this  head,  we  have  the  abortions  due  to 
disi)lacements  of  the  uterus,  these  being  com- 
monly either  descents  or  retro v<m  sious.  Thirdly, 
neoplasms  of  the  uterus,  such  asV.aucers  or^fibroid 


152  field's  medico-legal  guide. 

tumors,  sometimes  permit  the  occurrence  of  con- 
ception, but  prevent  gestation  running  to  its 
natural  term.  Fourthly,  the  presence  of  tumors 
in  the  neighboring  organs,  or  inflammatory  ad- 
hesions among  them,  may  prevent  the  uterus 
from  attaining  its  full  gi'owth,  and  compel  it  to 
early  evacuation  of  its  contents." 

Mr.  Chitty  says  :  "  Miscarriage  is  the  expulsion 
of  the  ovum  or  em])ryo  from  the  uterus  within 
the  first  six  weeks  after  conception.  Between 
that  time  and  the  expiration  of  the  sixth  month 
of  gestation,  when  the  child  may  possibly  live,  it 
is  termed  abortion.  But  the  criminal  act  of  de- 
strojdng  the  foetus  at  any  time  before  birth  is 
termed  in  law  miscarriao'e:  "  Chit.  Med.  Jur.  410. 
The  expulsion  of  the  foetus  at  a  period  of  utero- 
gestation  so  early  that  it  has  not  acquired  the  power 
of  sustaining  an  independent  life  is  now  generally 
termed  abortion  :  Bouv.  L.  Die,  Abortion. 

Again,  it  has  been  observed  that  abortion  signi- 
fies the  expulsion  of  the  contents  of  the  pregnant 
uterus  before  the  seventh  month  of  gestation  : 
Quain's  Die.  of  Med.  (8th  Am.  ed.)  5. 

In  a  recent  case  in  Kentucky  it  was  held  that 
criminal  abortion  could  not  be  committed,  in  the 


ABORTION.  153 

absence  of  statutes  to  the  contrary,  unless  the 
woman  was  quick  with  child  :  Mitchell  v.  Com., 
78  Ky.  204  ;  39  Am.  Eep.  227  ;  10  Cent.  L.  J. 
338.  And  in  New  York  it  has  been  held  that 
the  willful  killing  of  an  unborn  child  is  not  man- 
slaughter, except  it  is  made  so  by  statute  :  Evans 
V.  People,  49  N.  Y.  ^Q. 

§  74.  Maternal  causes  of  abortion. 

Abortion  or  miscarriage  may  be  natural  and 
innocent,  or  it  may  be  artificial  and  criminal,  de- 
pending upon  the  cause  or  the  circumstances  of 
the  case.  Again,  abortion  may  be  distinguished 
into  two  varieties  :  1.  Miscarriage,  or  the  expul- 
sion of  an  ovum  or  of  a  non- viable  child  ;  or,  2. 
Premature  labor,  or  the  expulsion  of  a  viable 
child :  See  Terrier's  Obstetrics  (1st  Am.  from 
the  4th  French  ed.),  167  ;  Dr.  Barnes'  Obstet- 
Operations  (Eng.  ed.),  385  et  seq. 

The  maternal  causes  of  abortion  have  been 
classified  as  follows  : 

1.  Poisons  circulating  in  the  mother's  blood, 
as  fevers,  syphilis,  various  gasses,  lead,  copper, 
etc.;  or  the  products  of  morbid  action,  as  jaun- 
dice, albuminuria,  carbonic  acid  from  asphyxia 
and  in  the  moribund. 


154  field's  medico-legal  guide.  - 

2.  Diseases  degrading  the  mother's  blood,  as 
amaemia,  obstinate  vomiting,  over-lactation. 

3.  Diseases  disturbing  the  circulation  dynami- 
cally, as  liver,  heart,  and  lung  disease. 

4.  Causes  acting  through  the  nervous  system, 
as  chorea,  mental  shock,  diversion  or  exhaustion 
of  nerve  force,  as  from  obstinate  vomitinof. 

5.  Local  disease — uterine,  as  fibroid  tumors, 
inflammation,  hypertrophy,  etc.,  of  the  uterine 
mucous  membrane ;  mechanical  anomalies,  re- 
troversion, pressure  of  tumors  external  to  the 
uterus,  etc. 

6.  Climatic  abortion. 

7.  Abortion  artificially  induced. 

§  75.  Foetal  causes  of  abortion. 

The  foetal  causes  of  abortion  are  as  follows  : 

1.  Diseases  of  the  membranes  of  the  ovum, 
as  fatty  degeneration,  hydratiform  degeneration, 
inflammation,  congestion,  apoplexy,  fibrous  de- 
posits. 

2.  Diseases  ot*  the  embryo  itself,  as  malfor- 
mation, inflammation  of  the  serous  membrane, 
diseases  of  the  nervous  system  ;  diseases  of  the 
kidney,  liver,  etc.;  mechanical,  as  from  torsion 
of  the  cord  or  funis. 


ABORTION.  155 

The  causes  of  abortion  are  often  complicated  ; 
in  other  words,  they  may  be  partly  maternal 
and  partly  foetal.  And  it  is  often  difficult  to 
discover  the  primary  cause ;  and  it  may  be 
further  observed  that  abortion  has  a  great  ten- 
dency to  become  a  habit  :  Dr.  Barnes'  Obstetric 
Operations  (1st  ed.),  385;  Tidy's  Leg.  Med- 
(Am.  ed.)  97. 

§  76.  Natural  and  innocent  causes  of  abortion. 

Abortion  may  be  naturally  and  innocently 
caused,  or  artificially  and  criminally  produced. 
Natural  and  innocent  abortion  or  miscarriage 
may  arise  from  a  nervous  and  irritable  tempera- 
ment, disease,  malformation  of  the  pelvis,  im- 
moderate venereal  indulgence,  a  habit  of  miscar- 
riage, plethora,  great  debility,  or  from  disease  in 
the  ovum  or  in  the  membranes. 

§  77.  Artificial  and  innocent  abortion ;  premature  labor. 
The  laws  of  England,  it  seems,  do  not  recog- 
nize the  induction  of  premature  labor  by  the 
medical  practitioner  ;  but  English  judges  have 
always  held  that  medical  men  are  morally  justified 
in  inducing  premature  labor,  provided  the  object 


156  field's  medico-legal  guide. 

be  to  save  the  life  of  the  mother  or  child,  or  both  : 
Tidy's  Leg,  Med.  (1st  Am.  ed.)  98  ;  Verrier's 
Man.  of  Obstet.  (1st  Am.  from  4th  French  ed.) 
319. 

In  this  country  the  statutes  making  the  pro- 
curins:  of  an  abortion  or  miscarriao-e  criminal, 
make  an  exception  in  case  ' '  the  same  is  necessary 
to  preserve  the  life  of  the  woman,  or  the  child 
of  which  she  is  pregnant : "  See  post^  §  80  ;  N. 
Y.  Penal  Code,  §  294. 

The  cases  in  which  it  has  been  recommended 
to  induce  premature  labor  are  as  follows  : 

1.  In  cases  of  extreme  narrowness  of  the  pelvic 
rim  ;  and  in  certain  cases  of  deformity,  where 
neither  version  nor  forceps  can  succeed  at  full 
term  in  bringing  into  the  world  a  living  child. 
This  may  often  be  accomplished  with  perfect 
safety  to  the  mother,  by  inducing  premature 
labor  at  the  seventh  month. 

2.  In  some  cases  of  obstinate  vomiting,  where 
all  expedients  have  proved  fruitless  and  a  fatal 
result  is  anticipated. 

3.  In  case  of  pregnancy  complicated  with  in- 
sanity and  disease  of  the  uterus  or  other  organs, 
such  as  cancer,  fibrous  tumors,  etc. 


ABOETION.  157 

4.  Ill  case  of  placenta  prsevia,  or  where  there 
is  severe  hemorrhage. 

5.  In  case  of  rupture  of  the  uterus. 

6.  In  case  of  narrowing  of  the  soft  passages, 
cicatrices  of  the  vagina,  etc. 

§  78.  Chief  methods  employed  to  produce  abortion. 

It  may  be  observed  that  the  methods  employed 
to  induce  a  miscarriage  or  to  produce  an  abortion 
may  be  the  same,  w^hether  it  be  lawful  or  unlaw- 
ful, whether  it  be  necessary  to  save  the  life  of  the 
mother  or  child,  or  both,  or  whether  the  purpose 
be  otherwise  and  criminal. 

Dr.  Barnes,  in  his  Obstetric  Operations,  says  : 
The  chief  methods  of  inducing  premature  labor  are: 

1.  Puncturing  the  amniotic  sac  or  membranes. 

2.  The  administration  of  ergot  of  rye,  or  other 
cebolic. 

3.  Separating  the  membranes  from  the  lower 
poi'tion  of  the  uterus. 

4.  Passino;  a  flexible  catheter  between  the 
membranes  and  the  uterus  {i,  e.,  within  the  womb), 
and  retaining  it  there  for  some  hours. 

5.  Mechanical  dilatation  of  the  cervix  by  instru. 
ments,  or  by  sponges,  or  by  laminaria  tents,  or 


158  field's  medico-legal  guide. 

by  india-rubber  bags  filled  with  warm  water  or 
air. 

6.  Galvanism. 

7.  Irritation  of  the  mammary  glands  or  breasts. 

8.  Injection  of  carbolic  acid  into  the  uterus. 
[Some  fatal  cases  are  related  as  occurring  from 

treatment  by  this  method.] 

9.  Injection  of  warm  or  cold  water,  or  both 
alternately,  into  the  vagina  or  uterus.  The  use 
of  cold  water  applied  externally  is  said  some- 
times to  be  successful.  Large  enemata,  or  the 
introduction  of  plugs  into  the  rectum  or  vagina, 
would  probably  be  effectual  :  Barnes'  Obs.  Oper- 
ations (1st  ed.),  385  ;  Tidy's  Leg.  Med.  (Am. 
ed.)  99. 

§  79.  Criminal  abortion ;  methods  of  procuring. 

There  are  two  means  or  methods  of  producing 
unnatural  criminal  abortion.  One  may  be  desig- 
nated as  general ;  the  other  local.  In  the  former 
case  the  purpose  is  to  produce  the  unnatural  ex- 
pulsion of  the  foetus  through  the  constitution  of 
the  mother,  by  means  of  venesection,  emetics, 
cathartics,  diuretics,  emmenagogues,  comprising 
mercury,  savin,  and  the  spurred  eye  or  ergot,  to 


ABORTION.  159 

which  much  importauce  has  been  attached ;  the 
other  is  by  local  or  mechanical  means,  which 
consist  either  in  external  violence  applied  to  the 
abdomen  or  loins,  or  in  the  nse  of  instruments 
introduced  into  the  uterus  for  the  purpose  of 
rupturing  the  membranes,  and  thus  bringing  on 
premature  action  of  the  womb.  The  latter  is 
the  more  generally  resorted  to,  as  being  the 
most  effectual,  and  not  unfrequently  the  larger 
cities  have  their  experts  for  this  purpose, — gen- 
erally women.  But  such  mechanical  means  of 
producing  abortion  not  unfrequently  produces 
the  death  of  the  mother  as  well  as  of  the  foetus. 

It  may  be  further  observed  on  this  subject  that 
drugs  taken  into  the  stomach  for  the  purpose  of 
producing  an  abortion,  and  in  sufficient  quanti- 
ties to  accomplish  the  object,  are  always  dan- 
gerous to  the  life  of  the  patient.  The  most 
common  iustruaiental  means  employed  for  this 
purpose  is  the  uterine  sound,  or  some  similar 
instrument. 

The  introduction  of  a  catheter  or  similar  in- 
strument inside  the  womb,  which  is  allowed  to 
remain,  will  sooner  or  later  produce  contraction 
of  the  womb    and    expulsion   of  its   contents. 


160  field's  medico-legal  guide. 

Water  is  sometimes  injected  for  tlie  same  pur- 
pose. A  galvaDic  stem  pessory  is  sometimes 
used.  And  it  is  said  that  electricity  may  be  em- 
ployed in  such  a  way  as  to  destroy  the  foetus  or 
ovum  without  injiuing  the  tissues  of  the  mother. 
A  knowledge  of  these  various  modes  of  pro- 
curing an  abortion  may  be  useful  both  to  the 
medical  and  the  legal  professions,  and  especially  to 
the  latter  in  cases  of  criminal  prosecutions  for 
abortion.  It  may  be  observed  that  the  chief 
methods  of  inducinof  miscarriat^e  or  abortion, 
which  we  have  referred  to,  have  been  resorted 
to  by  criminal  abortionists  in  general.  See  ante^ 
§78. 

§  80.  Statutory  provisions  on  the  subject. 

In  most  if  not  all  of  the  states  there  are  stat- 
utory provisions  against  procuring  abortions,  and 
by  the  provisions  of  such  statutes  it  is  a  grave 
offense,  except  in  certain  cases,  to  procure  an  un- 
natural abortion  by  any  means,  or  to  advise,  aid 
or  assist  in  doing  so.  The  provisions  of  the  Penal 
Code  of  New  York  on  this  subject  are  substan- 
tially the  statutory  provisions  of  other  states,  and 
they  are  as  follows  : 


ABORTION.  161 

"  §  294.  A  person  who,  with  intent  thereby  to 
procure  the  miscarriage  of  a  woman,  unless  the 
same  is  necessary  to  preserve  the  life  of  the 
woman,  or  of  the  child  of  which  she  is  pregnant, 
either, 

"  1.  Prescribes,  supplies  or  administers  to  a 
woman,  whether  pregnant  or  not,  or  advises  or 
causes  a  woman  to  take  any  medicine,  drug  or 
substance ;   or 

"  2.  Uses,  or  causes  to  be  used,  any  instrument 
or  othei"  means,  is  guilty  of  abortion,  and  is  pun- 
ishable by  imprisonment  in  a  state  prison  for  not 
more  than  four  years,  or  in  county  jail  for  not 
more  than  one  year. 

"§  295.  A  pregnant  woman,  who  takes  any 
medicine,  drug,  or  substance,  or  uses  or  submits 
to  the  use  of  any  instrument  or  other  means, 
with  intent  thereby  to  produce  her  own  miscar- 
riage, unless  the  same  is  necessary  to  preserve 
her  life,  or  that  of  the  child  whereof  she  is  preg- 
nant, is  punishable  by  imprisonment  for  not  less 
than  one  year,  nor  more  than  four  years. 

"  §  296.  Any  person  who  endeavors  to  conceal 
the  Ijirth  of  a  child  by  any  disposition  of  the 
dead  body  of  the  child,  whether  the  child  died 


162  field's  medico-legal  guide.  . 

before  or  after  its  birth,  is  guilty  of  a  misde. 
meanor. 

"§  297.  A  person  who  manufactures,  gives  or 
sells  an  instrument,  a  medicine  or  drug,  or  any 
other  substance,  with  intent  that  the  same  may 
be  unlawfully  used  in  procuring  the  miscarriage 
of  a  woman,  is  guilty  of  a  felony."  » 

Similar  provisions  will  be  found  in  the  statutes 
of  most  if  not  all  of  the  United  States. 

§  81.  Construction  of  statutes  on  the  subject. 

Under  the  provisions  of  such  statutes  it  is  not 
essential  to  constitute  the  offense  that  the  woman 
be  quich  with  child  ;  and  in  New  York,  under  an 
indictment  for  producing  abortion  of  a  quick 
child,  it  was  held  that  the  defendant  could  prop- 
erly be  convicted,  though  it  should  appear  that 
the  child  was  not  quich.  See  also,  as  to  the  suffi- 
ciency of  an  indictment  under  the  statute  of  New 
York,*  People  v.  Davis,  56  N.  Y.  95  ;  Monegan 
V.  People,  55  N.  Y.  613;  People  v.  Stockham, 
1  Park.  C.  E.  (N.  Y.)  427;  Hunt  v.  People,  3  id. 
569.  It  is  a  misdemeanor,  in  New  York,  to  at- 
tempt to  administer  drugs  to  a  pregnant  woman 
with  intent  to  produce  miscarriage  :  Lohman  v 


ABORTION.  163 

People,  1  N.  Y.  379  ;  2  Barb.  216  ;  Evans  y. 
People,  49  N.  Y.  86  ;  People  y.  Davis,  56  N.  Y. 
101  ;  Hunt  v.  People,  3  Park.  C.  R.  (N.  Y.)  569. 

In  New  York  a  misdemeanor  is  a  crime  which 
is  not  punishable  by  death  or  imprisonment  in  a 
state  prison  :  See  Penal  Code  N.  Y.,  §§  5,  6. 
And  it  is  a  misdemeanor  in  that  state  to  admin- 
ister drugs  to  a  pregnant  female  with  intent  to 
produce  miscarriage  :  People  v.  Lohman,  1  N. 
Y.  379.  The  female  in  such  a  case  is  not  re- 
garded as  an  accomplice,  but  rather  as  a  victim  : 
Dunn  V.  People,  29  N.  Y.  523. 

And  it  is  not  essential,  under  the  New  York  or 
other  similar  statutes,  that  the  defendant  accused 
of  administering  drugs  to  produce  a  miscarriage 
be  present  at  the  time  of  the  taking  of  the  same  : 
State  V.  Howard,  32  Yt.  380  ;  Watson  v.  State, 
22  Alb.  L.  J.  318  ;  Reg.  v.  Wilson,  1  Dears.  & 
B.  (Eng.)  127. 

§  82.  In  case  death  results  from  producing. 

Under  statutes,  if  not  by  the  common  law,  if 
in  consequence  of  the  means  used  to  procure  an 
abortion,  the  death  of  the  woman  ensues,  the 
crime  is  either  murder  or  manslaughter.    Under 


164         field's  medico-legal  guide. 

a  former  Euo'lish  statute  it  was  held  thai  if  a 
person  intending  to  produce  an  abortion  does  an 
act  which  causes  the  death  of  a  quick  child,  or 
which  causes  a  child  to  be  born  so  much  earlier 
than  the  natural  time,  that  it  is  born  in  a  state 
much  less  capable  of  living,  and  afterwards  dies 
in  consequence  of  its  exposure  to  the  external 
world,  the  person  who  b}^  his  misconduct  so 
brings  the  child  into  the  world,  and  puts  it 
thereby  in  a  situation  in  which  it  cannot  live,  is 
guilty  of  murder  ;  and  the  mere  existence  of 
the  possibility  that  something  might  have  been 
done  to  prevent  the  death  would  not  render  it 
less  murder  :  See  43  Geo.  Ill,  c.  58  ;  Geo.  IV, 
c.  51,  §14;   2  C.  &  K.  (Eng.)   784. 

This  would  not,  of  course,  be  the  case  where 
the  purpose  of  the  abortion  was  to  save  the  life 
of  the  mother  or  child.  But  see  more  recent 
English  statutes  on  the  subject :  24-25  Vict.  ch. 
100,  §§  ^^,  59. 

§  83.  The  killing  of  a  quick  child,  or  of  a  woman  quick 
Tvith  child,  in  attempts  to  produce  unlaivful  mis- 
carriage. 
Statutes  in  most  if  not  all  the  states  of  our 

Union  provide    that  where  death  results  from 


ABORTION.  165 

procuring  an  unlawful  abortion  or  an  attempt  to 
procure  the  same,  the  offending  party  is  guilt}^ 
of  manslaughter.  Thus  the  Penal  Code  of  New 
York  provides  : 

"  §  190.  The  willful  killing  of  an  unborn  quick 
child,  by  any  injury  committed  upon  the  person 
of  the  mother  of  such  child,  is  manslauo-hter  in 
the  first  degree. 

"§  191.  A  person  who  provides,  supplies  or 
administers  to  a  woman,  whether  pregnant  or 
not,  or  who  prescribes  for,  or  advises  or  procures 
a  woman  to  take  any  medicine,  drug  or  substance, 
or  who  uses  or  employs-  or  causes  to  be  used  or 
emploA^ed,  any  instrument  or  other  means,  with 
intent  thereby  to  procure  the  miscarriage  of  a 
woman,  unless  the  same  is  necessary  to  preserve 
her  life,  in  case  the  death  of  the  woman,  or  of  any 
quick  child  of  which  she  is  pregnant,  is  thereby 
produced,  is  guilty  of  manslaughter  in  the  first 
degree. 

"§  192.  Manslaughter  in  the  fii-st  degree  is 
punishaljle  by  imprisonment  for  not  less  than  five 
nor  more  than  twenty  years." 

The  penal  statutes  of  various  states  contain 
similar  provisions. 


166         field's  medico-legal  guide. 

§  84.  Signs  of  abortion  during  the  life  of  the  patient. 

The  common  signs  and  symptoms  of  a  recent 
natural  delivery  of  a  living  child  would  for  the 
most  part  usually  exist  in  case  of  abortion,  espe- 
cially if  the  abortion  occurs  during  the  kiter  pe- 
riods of  gestation.  Where  the  question  of  delivery 
is  presented,  as  in  case  of  suspected  child-mur- 
der and  concealment  of  birth,  constituting  in- 
fanticide and  consequently  murder,  the  certainty 
with  which  the  question  may  be  determined  hy 
a  medical  expert  will  largely  depend  upon  thfe 
time  that  has  elapsed  since  the  birth  of  the 
child  :  See  4  Field's  Lawyers'  Briefs,  ^§  121- 
123.  "  If  the  examination  be  conducted  within 
the  Aveek,  most  of  the  following  symptoms  will 
be  present ;  but  if  delayed  much  beyond  a  week 
or  ten  days,  the  evidences  of  recent  delivery 
w^ill,  at  best,  be  of  a  somewhat  indefinite  char- 
acter : 

"1.  The  pulse  will  be  a  little  quickened,  and 
more  than  usually  soft  and  compressible.     .    .     . 

"2.  A  peculiar  expression  of  countenance,  a 
dark  areola  under  and  around  the  eyes,  and  a 
peculiar  odor  about  the  body  will  be  observed  ; 
the  skin  is  usually  moist,  soft  and  relaxed. 


ABORTION.  167 

"  3.  The  breasts  are  almost  certain  to  contain 
milk,  and  to  show  the  areola,  pigmentation  and 
follicles  already  described.  They  will  be  tender 
and  knotty,  and  the  nipples  more  than  usually 
prominent.  The  character  of  the  milk  should 
be  examined.  The  first  milk,  or  colostrum,  is 
yellower,  richer  in  salts,  and  of  higher  specific 
gravity  than  the  milk  afterward  secreted.  It 
also  contains  an  enormous  number  of  granular 
corpuscles,  like  the  so-called  exudation  corpus- 
cles. With  reference  to  the  silvery  streaks  on 
the  breast,  whilst  we  admit  that  they  may  indi- 
cate a  previous  pregnancy  (or,  to  speak  more 
accurately,  a  previous  distension)^  it  is  certain 
they  do  not  prove  recent  delivery. 

*'  4.  The  skin  of  the  abdomen  will  be  found 
flaccid,  and  in  many  women  thrown  into  folds. 
Numerous  shiny,  silvery,  riband-like  streaks,  or 
cicatrices,  due  to  atrophy  of  the  skin,  following 
a  stretching  of  the  integuments,  may  be  seen 
on  the  abdomen  and  also  on  the  thighs.  There 
will  probably  be  noticeable  the  dark  line  ob- 
served during  pregnancy,  passing  from  the  navel 
to  the  pubes,  whilst  sometimes  the  muscles  are 
separated  by  the  median  line. 


168         field's  medico-legal  guide. 

"5.  On  passing  the  hand  downwards,  or  pressing 
it  firmly  over  the  pubic  region,  the  enlargement 
of  the  uterus  will  be  apparent,  often  remaining 
the  size  of  a  cricket  ball  for  a  considerable  time 
after  pregnancy.  In  health  the  involution  of 
the  uterus  takes  from  fourteen  to  ^  tw^enty-eight 
days,  although  in  some  cases  (sub-involution) 
many  weeks  or  months  elapse  before  it  is  com- 
plete. The  womb,  it  is  to  be  remarked,  is  often 
felt  to  incline  to  one  side. 

"  6.  By  vaginal  examination  the  os  uteri  will  be 
found  gaping.  Two  or  three  fingers  may  be 
passed  into  it  with  ease,  and  its  margins  will 
probably  be  found  fissured  and  torn.  By  sound, 
the  increased  depth  of  the  uterine  cavity  may  be 
ascertained. 

"  7.  We  may  find  the  lochia  exuding  from  the 
uterus.  The  lochial  discharge  is  at  first  colored 
with  blood,  but  afterwards  becomes  green  or 
brown  (green  waters).  After  a  week  the  lochia 
may  be  absent. 

"8.  The  perinaeum  will  in  all  probability  ex- 
hibit more  or  less  recent  laceration,  whilst  the 
vagina  and  uterus  will  present  a  dark  and  almost 
bruised  appearance :  "  Tidy's  Leg.  Med.  (1st 
Am.  ed.)  78. 


ABOETION.  169 

We  now  pass  directly  to  the  symptoms  and 
indications  of  miscarriage  or  abortion,  as  mani- 
fested by  the  woman  during  life,  and  within  a 
short  time  after  the  occurrence  of  the  same.  But 
before  these  sijrns  and  indications  are  considered 
it  may  be  remarked  :  First,  that  if  the  symptoms 
hereafter  mentioned  occur  during  the  earlier 
periods  of  gestation,  they  are  at  most  of  an  ex- 
ceedingly evanescent  character,  whilst  it  is  fairly 
open  to  question  ^vhether  they  are  not  as  a  rule 
entirely  al>sent  ;  and,  secondly,  that  some  if  not 
all  of  the  symptoms  named  may  be  simulated  by 
menstruation. 

Mr.  Tidy,  in  his  valuable  work  on  Legal  Medi- 
cine, in  presenting  the  signs  of  abortion,  observes: 
"The  signs  of  abortion  in  the  living  are  commonly 
stated  as  follows  : 

'  *  A  relaxed  condition  of  the  vulva  and  passages, 
patulousness  of  the  os  uteri,  the  presence  of  a 
lochial  secretion  in  the  earlier  stao^es,  and  a  white 
mucous  secretion  at  a  later  period,  accompanied 
by  that  characteristic  acrid  smell  common  to 
puerperal  women.  The  distension  of  the  breasts, 
yielding  a  flow  of  milk  on  pressure,  with  a  full- 
ness and  knotty  feeling  for  a  short  time  after 


170         field's  medico-legal  guide. 

aborting,  are  also  observable.  A  general  ansemic 
appearance  from  loss  of  blood,  with  sunken  eyes, 
will  be  noticed.  A  peculiar  excitement  of  the 
pulse,  with  dryness  of  skin,  is  also  invariably 
present.  A  speculum  may  be  needed  to  see  the 
lacerations  of  the  os  uteri,  but  as  a  rule  they 
may  be  felt  by  the  finger.  It  will,  of  course,  be 
of  primary  importance  to  remark  on  all  the  signs  of 
violence  to  uterus  or  vagina  ;  also  whether  there 
be  an  excessive  inflammatory  condition  of  the 
genital  organs.  Further,  all  marks  on  the  body 
of  a  female  which  may  indicate  general  violence 
for  the  purpose  of  effecting  the  ol^ject  in  view, 
should  be  carefully  recorded. 

"  If  an  abortion  occurs  naturally  at  an  early 
period  of  utero-gestation,  the  signs  usually  found 
may  be  very  slight  or  even  altogether  absent.  After 
the  third  month  the  insertion  of  the  placenta  may 
be  detected  by  a  rough  place  on  the  inner  uterine 
wall.  In  making  sl  ^ost  mortem  care  is  necessary 
in  removing  the  uterus  and  laying  it  open,  as  if 
there  be  a  wound  it  may  be  suggested  that  it 
was  made  during  the  post  inortem.  The  speci- 
men itself  should  refute  the  charge.  Punctures, 
lacerations  and  incisions  in  the  uterus  and  con- 


ABORTION.  171 

tiguous  organs  must  be  specially  looked  for. 
These,  particularly  the  punctures,  are  often 
multiple.  'He  stabbed  me  three  or  four  times,' 
is  a  common  remark  of  the  victim.'' 

§  85.  Signs  on  examination  of  the  female  after  death. 

It  is  usually  not  difficult  to  distinguish  wounds 
made  before  from  those  made  after  death,  because 
the  former  will  have  cicatrized  surfaces  or  be 
coated  with  lymph,  pus  or  blood.  It  is  not  always 
possible,  but  generally  it  is  easy,  to  distinguish  the 
results  of  violence  from  natural  or  spontaneous 
ruptures:  Barnes'  Obst.  Oper.(2d  ed.),  §§  320-375. 
Peritonitis,  when  resulting  from  violence,  is  gener- 
ally more  localized  than  when  it  is,  so  to  speak, 
spontaneous  in  puerperal  cases  at  term.  Note 
should  especially  be  taken  in  all  cases  of  abortion 
whether  there  are  signs  of  irritant  poisoning  in 
the  stomach  and  intestines  or  any  inflammation 
of  the  bladder  and  kidneys  resulting  from  the 
administration  of  abortive  drugs.  Note  further 
any  general  marks  of  violence,  especially  on  the  ab- 
domen; also  the  general  character  of  the  viscera, 
i.  e.,  whether  they  indicate  loss  of  blood  during 
life,   such   as  commonly   results  from   abortion 


172         field's  medico-legal  guide. 

If  a  woman  die  during  the  menstrual  period  a 
thickened  state  of  the  uterus,  a  swollen  condi- 
tion of  its  mucous  lining  and  a  generally  increased 
hyperaemic  appearance  are  invariably  found. 
And  it  is  well  to  bear  this  in  mind  lest  we  mis- 
take the  appearance  residting  from  menstruation 
for  that  produced  by  abortion  :  Id. 

§  86.  Examination  of  the  foetus ;  strains,  etc. 

If  the  foetus  be  found,  a  very  careful  examina- 
tion should  be  instituted  to  determine,  1st,  its 
age ;  2d,  whether  it  was  born  alive  ;  and,  3d,  if 
so,  to  what  cause  its  death  may  probably  be 
attributed.  Further,  the  foetus  must  be  most 
carefully  examined  for  punctures  or  wounds,  and 
every  attempt  made  to  form  an  opinion  whether 
the  injuries,  if  such  be  found,  were  caused  dur- 
ing life  or  after  death.  This  latter  point  is  es- 
sential, not  so  much  to  prove  that  the  wound 
was  sufficient  to  cause  death  as  to  negative  the 
certain  contention  on  the  part  of  the  defense 
that  the  injury  was  caused  after  birth  :  Id. 

§  87.  Infanticide ;  distinction  between,  and  foeticide. 

Infanticide  is  the  murder  of  a  new-born  in- 
fant ;  whereas  miscarriage,  abortion  or  foeticide 


ABORTION.  *  173 

is  the  destruction  of  life  of  the  foetus  in  utero. 
To  constitute  the  offense  of  murder,  the  child 
whose  life  is  destroyed  must  be  wholly  born. 
At  common  law  the  killing  of  an  unborn  child 
or  foetus,  though  quick,  was  only  manslaughter, 
and  this  is  generally  the  case  under  statutes  ; 
but  the  crime  of  infanticide,  or  the  killing  of  a 
child  after  it  is  fully  born,  is  murder  both  at 
common  law  and  under  statutes.  In  criminal 
cases  the  question  is  sometimes  presented  whether 
the  child  was  killed  before  or  after  birth,  and 
whether  there  was  any  delivery,  premature  or 
otherwise. 

The  signs  and  symptoms,  in  such  cases,  we 
have  already  stated.  But  such  a  case  would 
usually  call  for  expert  testimony,  where  the 
pregnancy  of  the  woman,  and  delivery,  prema- 
ture and  criminal,  or  otherwise,  is  proved  or  ad. 
mitted,  and  the  question  presented  is,  whether 
the  child  was  killed  before  or  after  delivery. 

This  question  is  sometimes  of  great  interest  to 
both  the  legal  and  medical  professions. 

It  may  be  observed  that  to  constitute  infanti- 
cide murder,  the  child  must  be  born,  and  "must 
have  been  a  reasonable  being  alive,"  and  a  child 


174         field's  medico-legal  guide. 

is  not  born  until  the  whole  body  be  detached 
from  that  of  the  mother.  R.  v.  Poulton,  5  C.  & 
P.  (Eng.)  329  ;  R.  v.  Enoch,  5  C.  &  P.  539  ;  R. 
V.  Crutchley,  7  C.  &  P.  814. 

If,  on  examination  by  an  expert,  it  appears 
that  the  deceased  child  has  breathed,  this  is  not 
a  decisive  proof  that  it  was  born  alive,  as  it  may 
have  breathed  before  the  delivery  was  complete  ; 
nor  is  it  necessary  that  the  child  should  have 
breathed  to  make  the  idlling  murder,  as  it  is  not 
an  uncommon  thing  for  a  child  to  be  wholly  born 
and  alive  some  time  before  breathing  :  4  Field's 
Lawyers'  Briefs,  §§  123,  124  ;  R.  v,  Sellis,  7  C. 
&  P.  (Eng.)  850;  R.  v.  Brain,  6  C.  &  P.  349; 
•R.  V.  Trilloe,  1  C.  &  M.  (Eng.)  650.  And 
breathing  may  commence  before  circulation,  as 
where  it  commences  after  birth,  but  before  the 
umbilical  cord  is  severed  :    Id. 

§  88.  Evidence  of  life  subsequent  to  birth  of  child. 

In  the  absence  of  direct  proof,  evidence  of  the 
existence  of  life  subsequent  to  birth  may  ueces. 
sarily  rest,  as  we  have  seen,  upon  the  signs  and 
symptoms  furnished  by  the  supposed  mother,  if 
living,  or  even  dead,   and  u^ow  expert  testimony 


ABORTION.  175 

based  upon  the  examination  of  the  identified 
child  or  foetus,  and  especially  if  it  be  found  in  a 
suitable  state  of  preservation,  to  fnrnish  evidence 
for  an  opinion  on  the  subject. 

In  such  a  case  the  expert  testimony  must  de- 
pend upon  certain  organic  facts  relating  to  the  ^ 
foetus  or  child,  and  to  the  circulatory  and  respir- 
atory systems.      In  respect  to  the  circulatory 
system  of  the  child  it  may  be  observed  : 

1.  That  the  foetal  blood  usuallj^  difiers  from  that 
of  the  fully  born  child  in  this,  that  the  blood  of  the 
former  is  wholly  dark  like  venous  blood,  desti- 
tute of  fibrous  matter,  and  forming  coagula  much 
less  firm  and  solid  than  that  which  has  been  sub- 
jected to  the  process  of  respiration.  So  the 
coloring  matter  is  darker,  and  contains  no  phos- 
phoric acid,  and  its  proportion  of  serum  and  red 
globules  is  comparatively  small.  The  circulation 
of  the  blood  anterior  to  birth'  is  usually  diflTerent 
from  that  subsequent  to  that  event  ;  the  former 
being,  by  means  of  the  foetal  openings,  the  fora- 
men ovale^  the  ductus  arteriosus^  and  the  ductus 
venosus,  enabled  to  perform  its  circuit  without 
sending  the  entire  mass  of  the  blood  to  the 
lungs    for    the    purpose    of    oxidization.     But 


176         field's  medico-legal  guide. 

this  test  would  not  perhaps  be  very  coiichisive  in 
case  of  breathing  before  an  entire  and  complete 
delivery  :  See  Yerrier  on  Obstet.  (1st  Am.  from 
4th-  French  ed.)  86,  87  ;  Dean's  Med.  Jnr.  142 
et  seq.  If  the  extra-uterhie  life  commences,  the 
,donble  circulation  is  established  in  all  cases,  and 
the  ante-natal  openings  above  referred  to  gradu- 
ally close,  so  that  their  closure  is  considered  very 
good,  if  not  clear,  evidence  of  life  subsequent  to 
birth. 

2.  After  delivery,  the  child,  if  alive,  is  in  ve- 
7-11771  natu7rt,  and  "  a  reasonable  being  alive,"  in 
the  sense  of  law,  so  as  to  constitute  its  willful 
and  premeditated  killing,  "with  malice  afore- 
thought," the  crime  of  murder.  On  this  subject 
Baron  Park  once  observed:  -'  The  child  might 
breathe  before  it  was  born,  but  its  having 
breathed  is  not  sufficiently  life  to  make  the  kill- 
in^r  of  the  child  .murder  ;  there  must  have  been 
an  independent  circulation  of  the  child,  or  the 
child  cannot  be  considered  alive  for  this  purpose:" 
E.  V.  Enoch,  5  C.  &  P.  (Eng.)  539. 

3.  Whether  the  child  was  born  alive  or  dead 
may  be  determined  also  from  the  difference  in 
the    distribution    of  the    blood  in  the  different 


ABORTION,  177 

organs  of  the  body.  The  two  organs  in  which 
this,  difference  is  most  perceptible  are  the  liver 
and  lungs.  The  circulation  of  the  whole  mass  of 
the  blood  through  the  lungs  distends  and  fills 
them  with  blood,  so  that  their  relative  weio^ht 
will  be  nearly  double,  and  any  incision  into  them 
will  be  followed  by  a  free  effusion  :  See  1  Beck's 
Med.  Jur.  478  et  seq.  ;  Dean's  Med.  Jur.  142 
et  seq. 

But  if  the  child  may  breathe  before  the  de- 
livery is  complete,  this  would  not  furnish  a  com- 
plete test. 

"  When  the  child  escapes  from  the  womb," 
observes  Dr.  Verrier,  "  or  just  before  the  end  of 
labor,  the  placental  circulation  diminishes  and 
ceases  completely.  The  defective  oxygenation 
that  results  induces  a  congested  state  of  the  brain 
that  excites  it  and  induces  contraction  of  the 
muscles  of  inspiration.  The  air  enters  and  dilates 
the  lungs,  the  child  cries,  and  life  is  fully  entered 
upon  :"  Verrier's  Manual  of  Obstet.  (1st  Am. 
ed.  from  the  4th  French  ed.)  87. 

At  this  period  the  crime  of  murder  may  be 
committed  upon  the  child,  but  previous  to  this 
the  willful  destruction  of  the  foetus,  especially  if 


178  FIELD'S    MEDICO-LEGAL    GUIDE. 

quick,  would  be  foeticide,  and  the  oliense  man- 
slaughter :  See  ante,  §  87  ;  R.  i\  Poulton,  .5  C. 
&  P.  (Eng.)  329. 

But,  as  we  have  before  observed,  the  weight 
of  authority  favors  the  conclusion  that  respiration 
of  the  child  fully  born  is  not  essential  to  con- 
stitute the  destruction  of  its  life  murder ;  and 
resj^iration  before  a  fully  completed  birth  of  it 
would  not  furnish  the  condition  which  would 
raise  the  willful  killing  of  it  from  manslaughter 
to  murder  :  Ante,  §  87  ;  ^.  v.  Crutch  ley,  7  C.  & 
P.  (Eng.)  814  ;  E.  v.  Sellis,  7  C.  &  P.  (Eog.) 
850  ;  R.  V,  Wright,  9  C  &  P.  754  ;  R.  v.  Brain, 
6  C.  &  P.  349. 

Evidence  of  life  after  birth,  as  derived  from 
the  respiratory  system  of  the  child,  may  be  sum- 
marized as  follows  : 

1.  From  the  thorax;  its  size,  capacity,  and 
arch  are  increased  by  respiration. 

2.  From  the  lungs,  which  are  increased  in 
size  and  volume,  and  projected  forward  by  respi- 
ration. So  by  respiration  they  become  rounded 
and  obtuse,  of  a  pinkish  red  hue,  and  their 
density  is  inversely  as  their  volume.  Lungs  that 
have  not  respired  are  specifically  heavier  than 


ABORTION.  179 

water,  and  if  placed  within  it  will  sink  to  the 
bottonic  If  they  have  respired,  their  increase  in 
volume  and  decrease  in  density  render  them 
specifically  lighter  than  water,  and  when  placed 
within  it  will  float.  It  is  observed  by  Dr.  Dean 
that  there  are  several  objections  to  this  test,  and 
if  it  be  conceded  that  the  foetus  or  child  may 
breathe  before  it  is  fully  born,  it  w^ould  not  be 
conclusive  on  the  question  whether  the  child  was 
or  was  not  fully  born  alive  ;  but  it  may  be  en- 
titled to  its  due  weight  in  the  settlement  of  the 
question  :  Dean's  Med.  Jur.  154  ;  1  Beck's  Med. 
Jur.  459  ;  ante,  §  88. 

3.  From  the  state  of  the  diaphragm,  as  the 
act  of  expanding  the  lungs  enlarges  and  arches 
the  thorax,  and,  by  necessary  consequence,  the 
diaphragm  descends,  whereas  prior  to  respira- 
tion it  is  found  high  up  in  the  thorax  :  Id. 

§  89.  Modes  of  destroying  the  life  of  a  child  after  birth. 

The  criminal  modes  commonly  resorted  to  for 
the  purpose  of  destroying  the  young  child  are  ; 
suff'ocation  ;  drowning ;  cold  and  exposure  ;  star- 
vation ;  wounds,  fractures,  and  injuries  of  various 
kinds  ;  the  introduction  of  sharp-pointed  inslru- 


180         field's  medico-legal  guide. 

ments  in  different  parts  of  the  body  ;  luxation 
and  fracture  of  the  neck  ;  strangulation  ;  poison- 
ing ;  intentional  neglect  to  tie  the  umbilical  cord  ; 
and  causing  the  child  to  inhale  air  deprived  of 
oxygen,  or  gases  positively  deleterious :  See 
Beck's  Med.  Jur.  509  ei  seq.  ;  Ryan's  Med.  Jur. 
137  ;  Dean's  Med.  Jur.  179  et  seq. 

§  90.  Summary  of  matters  to  be  observed  on  examina- 
tion of  the  body  of  the  woman  to  determine  the 
question  of  abortion. 

The  following  directions  are  suggested  for  con- 
sideration and  observance  on  examination  of  the 
woman,  if  living  or  dead,  for  the  purpose  of  deter- 
mining the  question  of  abortion,  whether  innocent 
or  criminal. 

Where  the  woman  is  alive : 

1.  Temperature. 

2.  As  to  the  woman's  predisposition  to  abort, 
and  the  period  at  which  the  abortion  had  com- 
monly occurred. 

3.  General  state  of  health.  Note  the  exist- 
ence of  leucorrhoea,  excessive  menstruations, 
syphilis,  asthma,  malignant  diseases,  uterine  dis- 
ease, etc. 


ABORTION.  181 

4.  Whether  the  woman  is  well  or  ill-formed. 
Note  pelvic  malformations,  effects  of  tight  lac- 
ing, etc. 

5.  Whether  any  cause  can  be  assigned  to  ac- 
count for  the  abortion ;  for  example,  violent 
coughing,  blood-letting,  straining  at  stool,  vio- 
lent exercise,  undue  excitement,  septic  poison- 
ing, violence,  administration  of  medicines,  etc. 

6.  All  injuries  to  the  genital  organs.  If  any 
exist,  consider  whether  they  might  be  self-in- 
flicted. 

Examination  of  the  body  of  the  woman  if  dead. 

1.  Be  careful  not  to  mistake  the  effects  of 
menstruation  for  those  produced  by  abortion. 

2.  Avoid  injuring  the  parts  by  the  knife,  or 
otherwise,  during  the  autopsy. 

3.  Consider  the  possibility  of  injuries  being 
self-inflicted. 

4.  Note  the  existence  of  any  marks  of  vio- 
lence on  the  abdomen  or  other  parts. 

5.  Observe  the  condition  of  the  genital  or- 
gans, nothig  all  inflammations,  rents,  tears,  per- 
forations, etc.  If  the  uterus  is  injured  it  should 
be  preserved. 

Note  also, 


182         field's  medico-legal  guide. 

1.  The  condition  of  the  passage,  whether  re- 
hixecl  or  otherwise. 

2.  The  condition  of  the  os  uteri,  whether 
virginal  or  gaping. 

3.  Vaginal  secretions,  and  if  present,  their 
character. 

4.  The  general  appearance  of  the  breasts, 
presence  of  milk,  etc. 

5.  Whether  there  be  any  signs  of  irritant 
poisoning  in  the  stomach,  or  inflammation  of  the 
bladder,  kidneys,  rectum,  etc.  ;  the  contents  of 
the  stomach,  if  necessary,  to  be  preserved. 

6.  Whether  the  viscera  generally  indicate  loss 
of  blood  durins:  life. 

Examination  of  the  sujiposed  product  of  con- 
ception. 

1.  The  nature  of  the  supposed  product  of 
conception. 

2.  Consider  whether  there  is  evidence  of  a 
diseased  condition  of  the  membranes  or  the  pla- 
centa ;  that  is,  the  structural  degeneration. 

3.  If  a  foetus  be  found,  determine  whether  it 
was  born  alive,  its  probable  age,  and  the  cause 
of  its  death. 

4.  Determine  whether,  if  there  be  wounds  or 


ABORTION.  183 

other  injuries,  they  were  inflicted  during  life  or 
after  death. 

5.  Examine  all  drugs,  instruments,  etc. 

The  crime  of  abortion  may  be  committed  in 
any  stage  of  pregnancy  :  State  v.  Slagle,  83  N. 
C.  630. 

§  91.  Indictments  ;  evidence. 

Under  the  provisions  of  the  New  York  Penal 
Code  the  defendant  V.  was  tried  and  convicted 
upon  an  indictment  charging  that  he  together 
with  one  P.  used  instruments  upon  the  body  of 
one  W.  to  procure  her  miscarriage.  The  opera- 
tion was  performed  by  P.  in  his  office,  and  it  was 
not  claimed  that  Y.  took  any  part  in  it,  or  was 
present  when  it  was  performed.  He  offered  no 
testimony  to  show  that  it  was  not  performed,  his 
position  being  that  he  neither  took  any  part  in 
the  operation  nor  advised  it,  nor  had  anything  to 
do  v/ith  it.  The  only  direct  testimony  showing 
that  he  had  advised  it  was  that  of  the  woman 
upon- whom  it  was  performed,  who  testified  that 
the  operation  was  performed  by  P.  at  his  office, 
by  use  of  an  instrument,  and  that  she  submitted 
to  it  upon  the  advice  and  procurement  of  the  de. 


184  field's  medico-legal  guide. 

fendaiit.  A  police  officer  testified  that  about  a 
month  after  the  crime  was  alleged  to  have  been 
committed  he  found  in  the  office  of  P.  instru- 
ments which  were  shown  to  be  suitable  for  the 
purpose  of  procuring  an  abortion.  The  defend- 
ant's counsel  requested  the  court  to  charge  the 
jury,  in  substance,  that  W.  was  an  accomplice  if 
the  crime  was  committed,  and  that  the  findinsr 
of  the  tools  in  P.'s  office  was  not  any  evidence  of 
corroboration  of  W.  on  the  question  of  the  com- 
mitting of  an  abortion,  as  against  V.  This  the 
the  court  refused  to  do,  and  the  appellate  court 
sustained  this  decision.  The  trial  court  held  that 
to  justify  y.'s  conviction  only  two  things,  under 
the  indictment,  were  necessary  to  be  established  : 
1.  That  an  abortion  had  been  committed  ;  2» 
That  the  defendant  had  induced  the  woman  to 
submit  to  it.  The  court  further  held  that  the 
finding  of  the  instruments  tended  to  corroborate 
the  vroman's  testimony  as  to  the  first,  though  not 
as  to  the  second  of  those  facts,  and  was  therefore 
admissible  ;  that  W.  could  not  be  indicted  with 
the  defendant  for  the  offense  charged,  and  that 
she  was  not  technically  an  ''  accomplice''  within 
the  meaning  of  the  statute  which  provides  that 


ABORTION.  185 

"  a  conviction  cannot  be  had  upon  the  testimony 
of  an  accomplice,  unless  he  be  corroborated  by 
such  other  evidence  as  tends  to  connect  the  de- 
fendant with  the  commission  of  the  crime."  And 
the  appellate  court  held  there  was  no  error  in 
this  :  People  v.  Yedder,  34  Hun  (N.  Y.),  280. 
See  also  Com.  v.  Blair,  126  Mass.  40;  Com.  v. 
Adams,  127  Mass.  15;  Watson  v.  State,  9  Tex. 
App.  237. 

The  statutes  of  New  York  make  it  a  crime  to 
administer  "  to  a  woman,  whether  pregnant  or 
not,"  any  medicine,  etc.,  "  with  intent  thereby  to 
procure  the  miscarnage  of  a  woman,"  etc.  Under 
this  statute  it  has  been  held  sufficient  to  charofe 
in  the  indictment  that  the  ofFense  was  committed 
upon  "a  woman  with  child  : "  Eckhardtv.  People, 
83  N.  Y.  462  ;   22  Hun,  525  ;  38  Am.  Rep. 

The  Penal  Code  of  Texas  makes  it  a  crime  to 
administer  any  drug  or  medicine  to  pregnant 
women  for  the  purpose  of  producing  an  abortion  : 
Tex.  Pen.  Code,  art.  536.  Under  this  statute  it 
has  been  held  that  the  indictment  for  the  offense 
need  not  allege  what  the  drug  was  :  Watson  v. 
State,  9  Tex.  App.  237. 

Under  the  provisions  of  the  statute  in  Iowa  on 


186         field's  medico-legal  guide. 

this  sul^ject  it  is  a  crime  to  administer  any  drug, 
etc.,  with  intent  to  procure  an  abortion  :  Iowa 
Code,  §  3864.  Under  this  provision  it  has  been 
held  that  the  offense  is  complete  if  there  be  a 
criminal  intent,  although  the  attempt  be  made 
before  the  woman  is  quick  with  child,  and 
although  the  substance  used  would  not  produce 
miscarriage  :  State  v.  Fitzgerald,  49  la.  260. 

So  under  the  statutes  of  Massachusetts,  makins: 
it  a  crime  for  attempting  to  procure  the  mis- 
carriage of  a  woman,  it  has  been  held  that  it  is 
not  necessary  to  the  maintenance  of  an  indict- 
ment therefor  that  it  be  shown  that  she  was  in 
fact  pregnant :   Com.  v.  Taylor,  132  Mass.  261. 

Under  the  statutes  of  Indiana  it  is  a  crime  to 
administer  any  drug,  etc.,  with  intent  to  procure 
the  miscarriage  of  a  pregnant  woman,  where  it  is 
not  necessary  in  order  to  preserve  her  life  :  2 
lud.  Eev.  St.  471,  §  36  (1876).  An  indictment 
under  this  provision,  averring  that  the  defendant 
unlawfully  and  willfully  employed  and  used  in 
and  upon  the  body  and  womb  of  a  pregnant 
woman  a  certain  instrument  called  a  catheter, 
with  intent  to  procure  a  miscarriage,  it  not  being 
necessary  to  cause  such  miscarriage  in  order  to 


ABORTION.  187 

preserve  the  life  of  the  woman,  was  held  suffi- 
cient :   State  v.  Sherwood,  75  Lid.  15. 

In  a  recent  case  in  Illinois  it  was  held  that  an 
indictment  for  an  attempt  to  procure  an  abortion, 
which  alleged  the  insertion  of  "  a  certain  instru- 
ment," not  describing  it,  "  into  the  private  parts," 
etc.,  without  adding  "and  womb,"  was  suffi- 
ciently definite  :  Baker  v.  People,  105  111.  452. 

Under  the  statute  of  New  Jersey,  to  constitute 
the  crime  of  attempting  to  procure  a  miscar- 
riage, the  thing  administered  or  prescribed  to  pro- 
cure it  must  be  to  a  woman  pregnant  with  child, 
and  it  must  be  noxious  in  its  nature  :  New  Jer- 
sey Crimes  Act,  §  75.  But  it  is  not  necessary  to 
prove  that  the  thing  will  produce  an  abortion, 
nor  to  allege  in  the  indictment  that  the  mother 
did  not  die  :  State  v.  Gedicke,  43  N.  J.  L.  86. 

In  that  state  the  statute  does  not  make  it  a 
crime  for  a  woman  voluntarily  to  take  drugs  or 
medicines  for  the  purpose  of  procuring  an  abor- 
tion ;  and  she  would  not  become  an  accomplice 
in  the  crime  of  another  who  should  administer  a 
potion  to  her  for  that  purpose,  although  he 
would  be  guilty  of  a  crime  :  State  v.  Hyer,  39 
N.  J.  L.  598. 


188  field's  medico-legal  guide. 

Where  an  indictment  charged  the  defendant 
with  procuring  an  abortion  resulting  in  the  death 
of  the  patient,  A.  B.,  and  the  indictment  closed 
with  an  alles^ation  as  follows  :  "in  manner  and 
form  and  by  the  means  aforesaid,  did  then  and 
there  kill  and  murder  her,  the  said  A.  B.,"  and 
objection  was  made  to  the  indictment  on  the 
ground  of  duplicity,  the  indictment  was  sus- 
tained, the  procurement  of  the  miscarriage  con- 
stituting the  coiyus  delicti :  Taylor  v.  State,  101 
lud.  d. 


CHAPTER   VI. 

CRIMINAL    LIABILITY    FOR    NEGLIGENCE    OR   MIS- 
CONDUCT. 

§  92.  Statutory  provisions  on  the  subject. 

In  this  connection  it  may  be  proper  to  observe 
that  the  penal  statntes  of  various  states  provide 
generally  for  the  punishment  of  physicians,  sur- 
geons and  others  for  negligence  or  misconduct  in 
their  professional  employment  or  business  which 
causes  the  death  of  some  person. 

Thus  the  Penal  Code  of  New  York  provides 
as  follows  : 

"  §  195.  A  person  who,  by  any  act  of  negli- 
gence or  misconduct  in  a  business  or  employment 
in  which  he  is  engaged,  ...  or  by  any  un- 
lawful, negligent  or  reckless  act,  ...  oc- 
casions the  death  of  a  human  being,  is  guilty  of 
manslaughter  in  the  second  degree." 

[It  has  been  held  that  a  dealer  in  drugs  and 
medicines  who  carelessly  labels  a  deadly  poison 
as  a  harmless  medicine,  and  sends  it  into  the 


190         field's  medico-legal  guide. 

market  as  siicli,  is  liable  to  all  persons  who,  with- 
out fault  on  their  part,  are  injured  by  such  med- 
icine in  consequence  of  the  false  label  :  Thomas 
V.  Winchester,  6  N.  Y.  397.] 

"  §  200.  A  physician  or  surgeon,  or  person  prac- 
ticing as  such,  who,  being  in  a  state  of  intoxica- 
tion without  a  design  to  effect  death,  administers 
a  poisonous  drug  or  medicine,  or  does  any  other 
act  as  a  physician  or  surgeon  to  another  person 
which  produces  the  death  of  the  latter,  is  guilty 
of  manslaughter  in  the  second  degree. 

"  §  202.  Manslaughter  in  the  second  degree  is 
punishable  by  imprisonment  for  not  less  than  one 
year  nor  more  than  fifteen  years,  or  by  a  fine  of 
not  more  than  one  thousand  dollars,  or  by  both." 

§  93.  General  criminal  liability  at  common  law  for  mal- 
practice. 

It  may  be  observed  that  at  common  law,  as 
Avell  as  under  statutes,  a  physician  or  surgeon 
who,  by  his  culpable  negligence  in  his  profes- 
sional practice,  causes  the  death  of  his  patient,  is 
guilty  of  manslaughter ;  and  if  a  person  unlaw- 
fully engages  in  the  practice  of  medicine,  as 
where  he  does  so  contrary  to  the  statute,  and 


CRIMINAL  LIABILITY  FOR  NEGLIGENCE,  ETC.   191 

kills  a  person  by  administering  to  him  medicines, 
even  which  he  thinks  will  be  beneficial  to  the 
patient  and  not  dangerous  to  health  or  life, 
would,  it  seems,  still  be  guilty  of  manslaughter  : 
Marsh  v.  Davidson,  9  Paige  (N.  Y.),  579. 

If  a  physician  or  surgeon,  or  any  person 
assuming  to  be  such,  by  his  gross  negligence  or 
gross  ignorance,  or  by  his  rashness  or  want  of 
proper  caution,  causes  the  death  of  his  patient, 
it  is  manslaughter  at  common  law  :  1  Hale's  P. 
C.  (Eng.)  429;  4  Bl.  Com.  197;  Eex  v.  St. 
John  Long,  4  C.  &  P.  (Eng.)  432  ;  Rex  v.  Van 
Butchell,  3  C.  &  P.  333  ;  Rex  v.  Ellis,  2  C.  & 
K.  (Eng.)  470  ;  Rex  v.  Spiller,  5  C.  &  P.  333  ; 
Rex  V.  Williams,  3  C.  &  P.  635. 

Ill  the  case  last  cited  the  defendant,  a  surgeon 
and  physician,  was  indicted  and  tried  for  man- 
slauo^hter  at  common  law.  Lord  EUenborouo^h 
charged  the  jury  as  follows  :  "  It  is  for  you  to 
consider  whether  the  evidence  goes  so  far  as  to 
make  out  a  case  of  manslausrhter.  To  substan- 
tiate  that  charge  the  prisoner  must  have  been 
guilty  of  criminal  misconduct,  arising  either 
from  the  grossest  ignorance  or  the  most  criminal 
inattention.     One  or  the  other  of  these  is  ueces- 


192         field's  medico-legal  guide. 

sary  to  make  him  guilty  of  that  criminal  negli- 
o^euce  aud  misconduct  which  is  essential  to  make 
out  a  case  of  manslaughter.  It  does  not  appear 
in  this  case  that  there  was  any  want  of  attention 
on  his  part :  and  from  the  testimony  of  the  wit- 
nesses on  his  behalf,  it  appears  that  he  had  de- 
livered many  women  at  diflerent  times,  and  from 
this  he  must  have  had  some  degree  of  skill." 

It  may  be  affirmed  as  a  general  rule,  in  the 
absence  of  statntory  regulations  on  the  subject 
to  the  contrary,  that  a  physician  or  surgeon, 
qualified  and  authorized  by  law  to  practice  as 
such,  could  not  be  held  criminally  responsible 
for  an  honest  error  of  judgment  in  the  treatment 
of  his  patient,  although  it  may  cause  his  death. 
But  if  the  death  of  a  patient  results  from  his 
gross  carelessness,  or  ignorance,  or  from  criminal 
misconduct  or  inattention,  he  would  be  guilty 
of  manslaughter  at  common  law,  if  not  under 
statutes  :  See  3  Wheeler's  Crim.  Rep.  (N.  Y.) 
312  ;  Commonwealth  v.  Thompson,  6  Mass.  134 ; 
Fairlee  v.  People,  11  111.  1  ;  Brice  v.  State,  8 
Mo.  561 ;  State  v.  Morphy,  33  la.  270  ;  11  Am. 
Rep.  122.  Thus  where  a  physician  recklessly 
applied  kerosene  oil  to  a  patient's  body,  which 


CEIMINAL  LIABILITY  FOR  NEGLIGENCE,   ETC.    193 

caused  blistering  and  death,  it  was  held  that  he 
might  be  convicted  of  manslaughter,  although 
there  was  no  evil  intent :  Commonwealth  v. 
Pierce,  138  Mass.  165  ;   52  Am.  Eep.  264. 

A  person  who  merely  assumes  to  act  as  a 
physician,  but  is  known  not  to  be  such,  is  not 
criminally  liable  for  the  death  of  his  patient 
caused  by  the  medicine  which  he  administers, 
provided  he  acts  in  good  faith  and  to  the  best  of 
his  abilities  :  State  v.  Shultz,  55  la.  628  :  39  Am. 
Eep.  187. 


CHAPTER  VII. 

PRACTICE    WITHOUT  A  LICENSE    OR    DIPLOMA 
PROHIBITED. 

§  94.  General  provisions  of  statutes  on  the  subject. 

Ill  various  states,  if  not  generally,  the  practice 
of  medicine  or  surgery,  without  a  license  t*here- 
for  or  a  diploma,  is  prohibited  by  statute,  and  a 
peualt}'  is  imposed  for  its  violation. 

Thus  it  is  provided  by  statute  in  New  York  as 
follows  : 

"  No  person  shall  practice  physic  or  surgery, 
unless  he  shall  have  received  a  license  or  diploma 
for  that  purpose  from  one  of  the  incorporated 
medical  societies  of  the  state,  or  the  degree  of 
doctor  of  medicine  from  the  Regents  of  the  Uni- 
versity ;  or  shall  have  been  duly  authorized  to 
practice  by  the  laws  of  some  other  state  or 
country,  and  have  a  diploma  from  some  incor- 
porated college  of  medicine,  or  legally  incor- 
porated medical  society  in  such  state  or  country. 

* '  No  person   coming   from   another   country 


PRACTICE    WITHOUT    LICENSE,    ETC.        195 

shall  practice  physic  or  surgery  in  this  state 
until  he  shall  have  Ijeen  examined  and  licensed 
by  the  censors  of  the  State  Medical  Society  ; 
and  no  person  coming  from  another  state  shall 
practice  physic  or  surgery  in  this  State  until  he 
shall  have  filed  a  copy  of  his  diploma  in  the 
office  of  the  clerk  of  the  county  where  he  resides, 
and  until  he  shall  have  exhibited  to  the  medical 
society  of  that  county  satisfactory  testimonials  of 
his  qualifications,  or  shall  have  been  examined 
and  approved  by  its  censors. 

"No  diploma,  granted  by  any  authority  out 
of  this  State,  to  an  individual  who  shall  have 
pur^ied  his  studies  in  any  medical  school  within 
this  state,  not  incorporated  and  organized  under 
its  laws,  shall  confer  on  such  individual  the  right 
of  practicing  physic  or  surgery  within  this  State. 

"  Every  person  licensed  to  practice  physic  or 
surgery,  or  both,  shall  deposit  a  copy  of  such 
license  with  the  clerk  of  the  county  where  he 
resides,  who  shall  file  the  same  in  his  office  ;  and 
until  such  license  is  so  deposited,  such  person 
shall  be  liable  to  all  the  penalties  provided  by 
law,  in  the  same  manner  as  if  he  had  no  license. 

"  No  person  under  the  age  of  twenty-one  years 


196         field's  medico-legal  guide. 

shall  be  entitled  to  practice  physic  or  surgery  :" 
2  Rev.  Stat.  K  Y,,  ch.  xiv,  tit.  7,  §§  16,  17,  18, 
19,  20. 

The  foregoing  provisions  have  been  amended, 
and  perhaps  some  of  them  repealed  in  part  by 
subsequent  statutes.  The  copyirig  these  pro- 
visions was  for  the  piu'pose  of  indicating  the 
general  scope  and  character  of  the  legisla- 
tion regulating  and  controlling  the  practice  of 
medicuie  and  surgery,  without  intending  to  fur- 
nish the  exact  status  of  the  law  as  it  now  exists 
in  the  State  of  New  York.  The  statutes  of  other 
states  contain  very  similar  provisions  ;  but  it 
does  not  fall  within  the  compass  of  this  volume 
to  present  the  provisions  of  the  law  on  this  sub- 
ject in  the  various  states.  These  must  be  con- 
sulted in  the  state  where  information  is  desired 
on  this  subject.  In  some  of  the  states  it  is  ex- 
pressly provided  that  a  person  shall  not  be 
permitted  to  recover  by  action  for  services  ren- 
dered as  a  medical  practitioner  unless  he  shall 
have  received  a  license  or  diploma  therefor,  and 
complied  with  the  statutes  regulating  the  prac- 
tice of  medicine  and  surgery.  But  in  the 
absence  of  such  a  provision,  a  claim  for  services 


PRACTICE    WITHOUT    LICENSE,  ETC.  197 

rendered  in  violation  of  the  statute  could  not  be 
enforced  l)y  action  at  law. 

§  95.  Criminal  liability  for  practicing  without  license. 

Penalties  are  usually  imposed  l)y  statute  for  a 
violation  of  the  provisions  of  the  statutes  regu- 
lating the  practice  of  medicine  and  surger3^  in 
the  various  states.  And  if  the  offender  persists 
in  a  violation  of  the  statutes  on  the  subject,  the 
statutes  frequently  provide  that  he  may  be  either 
fined  or  imprisoned,  or  both. 

On  this  subject  the  Penal  Code  of  New  York 
provides  : 

''  §  356.  A  person  who  practices  or  attempts  to 
practice  medicine  or  surgery  in  this  State,  unless 
authorized  to  do  so  by  a  license  or  diploma  from 
some  chartered  school,  state  board  of  medical 
examiners,  or  medical  society,  or  who  practices 
under  cover  of  a  license  or  diploma  illegally  or 
fraudulently  obtained,  is  guilty  of  a  misde- 
meanor, punishable  for  the  first  offense  by  a  fine 
of  not  less  than  fifty  dollars  nor  more  than  two 
hundred  dollars,  and  for  any  subsequent  offense 
by  a  fine  of  not  less  than  one  huridred  dollars 
nor  more  than  five  hundred  dollars,  or  by  im- 


198         field's  medico-legal  guide. 

prisonmeut  noteless  than  thirty  days,  or  by  both 
such  iraprisoiimeiit  and  fine." 

It  has  been  held  that  such  a  statute  does  not 
apply  to  one  who  undertakes  to  cure  diseases  by 
manipulating  the  body  of  the  patient,  as  by  i-ub- 
bing,  kneading  or  pressing  it  :  Smith  v.  Lane,  24 
Hun  (N.  Y.),  632.  Where  the  defendant  was 
charged  with  practicing  without  a  diploma,  the 
production  of  a  diploma  b}^  the  defendant  would 
be  iwima  facie  evidence  of  a  right  to  it :  Ra3aior 
V.  State,  62  Wis.  289  ;  Wendel  v.  State,  62  Wis. 
300  ;   Holmes  v.  Halde,  74  Me.  28. 

It  has  been  further  held,  in  New  York,  that  if 
a  person  engaged  in  the  unlawful  practice  of 
medicine,  contrary  to  the  statute,  kills  a  person 
by  administering  medicines  which  he  believes  not 
to  be  dangerous  to  his  health  or  life,  he  is  guilty 
of  manslaughter  :  Marsh  v.  Davieson,  9  Paige, 
597.  And  it  has  also  been  held  in  that  state  that 
an  unlicensed  ph^^sician  cannot  maintain  an  action 
for  his  services :  Zimmerman  v.  Moerison,  14 
Johns.  369;  Alcott  ^;.  Barber,  1  Wend.  526; 
Smith  V.  Tracy,  2  Hall,  465.  But  see  Bronsou 
V.  Holfman,  7  Hun,  614. 


PRACTICE   WITHOUT    LICENSE.  ETC.         199 

§  96.  Criminal  liability  for  causing  death  by  administering 
a  drug  or  medicine  in  a  state  of  intoxication. 

Ill  addition  to  the  statutory  provisions  in  New 
York,  before  referred  to,  relating:  to  the  criminal 
lialjility  of  a  physician  or  surgeon  who  in  a  state 
of  intoxication  administers  a  drug  or  medicine 
which  causes  death,  there  is  a  further  provision 
in  the  Penal  Code  of  that  state  as  follows  : 

"§357.  A  ph3'sician  or  surgeon,  or  person 
practicing  as  such,  who,  being  in  a  state  of  in- 
toxication, administers  any  poison,  drug  or  medi- 
cine, or  does  any  other  act  as  a  physician  and 
surgeon  to  another  person  by  which  the  life  of 
the  latter  is  endangered  or  his  health  seriously 
affected,  is  guilty  of  a  misdemeanor." 

Similar  statutory  provisions  may  be  found  in 
various  states. 

§  97.  Removal  of  attorneys  for  misconduct. 

We  have  noticed  that  at  common  law  and 
under  statutes  the  confidential  communications 
made  bet^^een  attorney  and  his  client,  and  physi- 
cian or  surgeon  aud  his  patient,  relating  to  pro- 
fessional business,  will  generally  be  protected, 
and  the  se.'d  of  secrecy  is  applied  to  the  mouth 
of  each  under  such  circumstances.     So  we  have 


200         field's  medico-legal  guide. 

seen  that  the  physician  or  surgeon  may  forfeit 
his  right  to  practice  as  such  for  violation  of  the 
statutes  and  rules  duly  ordained  and  established 
by  medical  institutions  and  boards  in  various 
states. 

In  this  connection  it  may  be  proper  to  remark 
that  an  attorney  duly  admitted  to  practice  in  au}^ 
court,  state  or  national,  may  forfeit  this  right  by 
his  misconduct ;  and  he  may  be  suspended  or  re- 
moved from  such  office  by  such  court  if  it  appear 
that  he  has  been  guilty  of  such  misconduct,  after 
investigation  by  the  court  on  charges  made,  and 
after  opportunity  is  had  by  the  attorney  to  be 
heard  on  the  charge  :  Ex  parte  Burr,  2  Cranch, 
U.  S.  379  ;  Same,  9  Wheat.  (U.  S.)  529  ;  Austin's 
Case,  5  Eawle  (Pa.),  191  ;  Re  Yale,  75  N.  Y. 
526  ;  Fletcher  v.  Dangerfield,  20  Cal.  427  ;  State 
V.  Sharp,  7  la.  191 ;  see  also  1  Field's  Lawyers' 
Briefs,  §  460. 

The  charge  or  information  against  an  attorney 
in  such  a  case  should  state  the  facts  with  reason- 
able precision ;  and  where  it  merely  charged 
that  the  attorney  took  legal  papers  belonging  to 
the  files,  etc.,  this  was  held  to  be  too  indefinite  : 
People  V.  Allison ,  6  8  111.  1 5 1 .  And  all  such  charges 


PRACTICE   WITHOUT    LICENSE,  ETC.  201 

should  be  clearly  sustained  by  evidence  :  Matter 
of  Balluss,  28  Mich.  507.  In  some  states  attor- 
neys ma}^  be  disbarred  for  neglecting  to  pay  or 
deliver  on  demand  property  or  money  of  clients 
in  their  hands  and  which  should  be  paid  or 
delivered  :  Klingensmith  v.  Kepler,  41  Ind. 
341  ;  People  v.  Palmer,  61  111.  255  ;  Slemmer 
V.  Weight,  54  la.  164. 

§  98.  Duty  of  attorneys  to  the  court. 

In  general  it  may  be  observed  that  an  attor- 
ney's duty  towards  the  court  embraces  at  least 
integrity,  courteous  demeanor,  and  a  proper 
respect  for  its  authority  ;  and  a  willful  disregard 
of  such  duty  is  a  contempt  of  court,  and  a 
ground  of  suspension  or  disbarment,  besides  con- 
stitutiug  sufficient  ground  for  a  fine  or  imprison- 
ment, in  certain  cases,  where  the  circumstances 
warrant  it ;  and  the  court  may,  in  some  cases 
where  the  contempt  is  manifest,  act  upon  its  own 
personal  knowledge. 

On  this  subject  we  have  heretofore  said  :  "  The 
duty  of  the  attorney  to  the  court  is  not  merely 
that  of  courteous  demeanor,  but  he  is  required 
to  show  [)roper  respect  to  its  authority.    And  if  an 


202         field's  medico-legal  guide. 

attorney  is  guilty  of  contempt  of  court,  by  the  use 
of  abusive  and  insulting  language,  or  by  indecent 
conduct  in  the  presence  of  the  court,  or  a  willful 
disregard  of  its  authorit}^  this  is  sufficient  ground 
for  a  fine,  or  for  suspension,  or  for  disbarment, 
and  the  court  could  act  upon  such  a  case  without 
further  evidence  than  its  own  personal  knowledge: 
ExjDcirte  Robinson,  19  Wall.  505.  But  the  right 
to  disbar,  it  has  been  observed,  should  not  be  ex- 
ercised except  under  circumstances  which  would 
render  the  continuance  of  the  attorney  in  prac- 
tice incompatible  with  a  proper  respect  for  the 
court  itself,  or  a  proper  regard  for  other  attor- 
neys at  the  bar  ;  and  not  where  a  fine,  reprimand 
or  temporary  suspension  would  accomplish  the 
purpose  desired  :  Ex  parte  Seacomb,  19  How. 
(U.  S.)  9  ;  see  also  Bradley  v.  Fisher,  13  Wall. 
335  ;  Jackson  v.  Texas,  21  Tex.  'oQ^  ;  Ex  parte 
Cole,  1  McCrary  (U.  S.  C.  C),  405;  Be. 
McCarthy,  42  Mich.  71.  The  duty  to  the  court 
embraces  integrity ;  and  where  an  attorney's 
name  was  stricken  from  the  rolls  for  erasino^  the 
word  "  not  "  in  a  letter  to  a  county  judge,  ad- 
visino;  him  not  to  allow  bail  to  one  indicted 
for  murder,  it  was  held  a  proper  case  for  disbar- 


PRACTICE    WITHOUT    LICENSE,  ETC.         203 

meiit  :  Baker  v.  Com.,  10  Bush  (Ky.),  592  ;  see 
also  Be  Hirst,  9  Phil.  (Pti.)  216  ;  Stout  v.  Proc- 
tor, 71  Me.  288  •  Be  Arctancler,  26  Miim.  25.  In 
case  of  a  manifest  contempt  of  court  and  its  au- 
thority in  its  presence  and  under  its  observation) 
it  has  been  suggested  by  high  authority  that  the 
attorney  should  ordinarily  be  heard  before  the 
order  is  made  for  his  disbarment,  especially  in 
explanation  of  any  matters  that  may  show  an 
absence  of  improper  motives  on  his  part,  or  that 
would  mitigate  tlie  offensive  character  of  his  con- 
duct ;  and  to  make  reparation  and  apology  :  ^x 
parte  Eobinson,  19  Wall.  (U.  S.)  505  ;  Bradley 
V.  Fisher,  13  Wall.  335  ;  £Jx  parte  Bradley,  7 
Wall.  364;  Beene  v.  State,  22  x\rk.  157; 
Fletcher  v.  Dangerfield,  20  Cal.  430  ;  Saxton  v. 
Stowell,  11  Paige  (N.  Y.),  526;  see  also  Be 
Attorney,  86  N.  Y.  573  ;  Stout  v.  Proctor,  71 
Me.  288;  Be  Davis,  93  Pa.  St.  116  ;  Be  Stein- 
man,  95  Pa.  St.  220  ;  1  Field's  Lawyers'  Briefs, 
§  461. 

§  99.  Disbarment  or  suspension  of  an  attorney  not  neces- 
sarily final. 

The  judgment  or  order  of  the  court  disbarring 

or  suspending  an  attorney  is  not  always  final. 


204         field's  medico-legal  guide. 

But  so  long  as  it  remains  unmodified,  or  is  not 
set  aside  or  repealed,  the  attorney  has  no  author- 
ity to  practice  in  the  same  or  similar  courts  ;  nor 
can  he  be  readmitted  to  practice  in  such  courts, 
except  the  judgment  or  order  be  set  aside.  But 
the  court  making  the  order  may  upon  proper  ap- 
plication restore  the  attorney  to  his  original 
rights :  1  Field's  Lawyers'  Briefs,  §  462.  During 
the  suspension  or  disbarment  of  an  attorney  he 
cannot  represent  any  person  in  court  as  an  attor- 
ney or  agent :  Cobb  v.  Superior  Judge,  43  Mich. 
289.  As  to  the  remedy  of  the  attorney  in  such 
cases,  see  1  Field's  Lawyers'  Briefs,  §  463. 


CHAPTER  VII. 

CIVIL  LIABILITr  FOR  MALPRACTICE. 
§  100.  Various  kinds  of  malpractice  defined. 

Malpractice,  from  the  Latin  mala  praxis,  may 
be  defined  as  bad  or  unskillful  practice  in  a  phy- 
sician, surgeon,  or  other  medical  person, whereljy 
the  health  of  the  patient  is  injured,  or  his  life 
destroyed.  Willful  malpractice  takes  place  when 
the  physician  or  surgeon  purposely  administers 
medicines  or  performs  an  operation  which  he 
knows  and  expects  will  result  in  damage  to  the 
health  or  in  death  of  the  individual  under  his 
care  :  El  well  on  Malp.  243  :  People  v.  Lohman, 
2  Barb.  (N.  Y.)  216. 

Negligent  malpractice  comprehends  those 
cases  where  there  is  no  criminal  or  dishonest  in- 
tent or  object,  but  gross  negligence  of  that  atten- 
tion which  the  situation  of  the  patient  requires  ; 
as  if  a  physician  should  administer  medicines 
while  in  a  state  of  intoxication,  from  which  in- 
jury to  the  health,  or  the  death  of  the  patient 
arises. 


206         field's  medico-legal  guide. 

Ignorant  malpractice  is  the  administration  of 
medicines,  or  the  performance  of  surgical  oper- 
ations, calculated  to  do  injury,  and  which  do 
harm,  and  which  a  well  educated  and  scientific 
medical  man  would  know  were  not  proper  in 
the  case  :  Elwell  on  Malp.  198  ;  7  B.  &  C. 
(Eng.)  493  ;  5  C.  &  P.  (Eng.)  333  ;  1  Mood.  & 
K.  (Eng.)  405  ;  5  Cox  C.  C.  (Eng.)  587  ;  6 
Mass.  134. 

We  have  noticed  that  at  common  law,  as  well 
as  under  statutes  in  various  states,  malpractice  is 
an  ofiense.  And  this  is  true,  whether  it  be  occa- 
sioned by  curiosity  and  experiment,  or  by  neglect, 
as  it  breaks  the  trust  which  the  patient  has  put 
in  his  physician  or  surgeon,  and  tends  directly 
to  his  destruction  :  3  Chit.  C.  L.  863  ;  2  Euss. 
C.L.  863;  see  also  Patten  z;.  Wiggin,  51  Me.  594. 
But  our  purpose  in  this  connection  is  to  treat  of 
the  civil  liability  of  the  medical  man  for  mal- 
pi'actice. 

§  101.  Liability  for  damages  in  general  for  malpractice. 

A  physician  or  surgeon  may  become  liable  in 
damages  for  an  injury  to  a  patient,  at  common 
law  and  under  statutes,  or  for  the  death  of  a 
patient  caused  by  his  malpractice. 


CIVIL    LIABILITY   FOR    MALPRACTICE.        207 

In  the  case  of  surgeons,  especially,  civil  ac- 
tions for  damages  are  very  common  where  sur- 
gical operations  are  necessary,  or  supposed  to  be 
so,  by  reason  of  disease  or  injury,  and  the  op- 
eration is  so  unskill fully  performed  as  either  to 
shorten  a  limb,  or  render  it  stiff,  or  otherwise 
prevent  the  free  use  of  it,  by  which  the  patient 
ever  afterward  suffers  inconvenience  and  sustains 
damages.  Injury  of  this  kind,  and  consequent 
damages,  may  result  from  almost  every  kind  of 
unskillful  surgical  operations,  and  especially  in 
cases  of  amputation,  fractures  or  dislocations : 
Elwell  on  Malp.  55  ;  Barnes  v.  Means,  82  111. 
379.  In  the  case  last  cited  it  was  held  that 
where,  from  want  of  skill  of  the  defendant  as  a 
surgeon,  a  limb  he  was  employed  to  set  was 
shortened,  he  was  liable  in  damages  therefor. 

§  102.   Skill  reqmred  of  a  surgeon  or  physician. 

To  the  performaoc€  of  all  sui-gical  operations 
the  surgeon  is  bound  to  bring,  at  least,  ordinary 
knowledge  and  skill.  He  must  adopt  the  means 
and  apply  the  skill  well  settled  by  the  highest 
lights  of  the  profession.  He  must  possess  and 
practically  exercise  that  degree  and  amount  of 


208         field's  medico-legal  guide. 

knowledo'e  and  science  which  the  lead  in  2:  au- 
thorities  have  pronounced  as  the  resnlt  of  their 
researches  and  experience  up  to  the  time,  or 
within  a  reasonable  time,  before  the  issue  or 
question  to  be  determined  is  made :  Elwell  on 
Malp.  55  ;  6  Am.  Law  Reg.  (N.  S.)  774  ;  see 
also  8  East  (Eng.),  347  ;  1  H.  Bl.  (Eng.)  61  ; 
McCandless  v.  McWha,  22  Pa.  St.  261^  27  N. 
H.  460  ;  13  B.  Mon.  219  ;  Sliear.  &  Redf  on 
Negligence,  ^  440  ;  McLalon  v.  Adams,  19  Pick. 
(Mass.)  333  ;  Carpenter  v.  Blake,  60  Barb.  488; 
Patten  v.  Wiggin,  51  Me.  594  ;  Eex  v.  Long,  4 
C.  &  P.  (Eng.)  423  ;  Slater  v.  Baker,  2  Willes 
(Eng.),  259. 

Messrs.  Shearman  and  Redfield,  have  stated 
the  general  rule  of  civil  liability  of  the  medical 
man  for  malpractice  as  follows :  "Although  a 
phj^sician  or  surgeon  may  doubtlessly  by  express 
contract  undertake  to  perform  a  cure  absolutely, 
the  law  will  not  implj^  such  a  contract  from  the 
mere  employment  of  a  physician.  A  physician 
is  not  an  insurer  of  a  cure,  and  is  not  to  be  tried 
for  the  result  of  his  remedies.  His  only  contract 
is  to  treat  the  case  with  reasonable  diligence  and 
skill.     If  more  than  this  is  expected  it  must  be 


CIVIL    LIABILITY    FOB    MALPRACTICE.        209 

expressly  stipulated  for.  .  .  .  The  general  rule, 
therefore,  is,  that  a  medical  man,  who  attends 
for  a  fee,  is  liable  for  such  want  of  ordinary  care, 
diligence  or  skill  on  his  part  as  leads  to  the  in- 
jury ot"  his  patient.  To  render  him  liable,  it  is 
not  enough  that  there  has  been  a  less  degree  of 
skill  than  some  other  medical  men  might  have 
shown,  or  a  less  degree  of  care  than  even  himself 
might  have  bestowed ;  nor  is  it  enough  that  he 
himself  acknowledo;ed  some  deoTee  of  want  of 
care  ;  there  must  have  been  a  want  of  competent 
and  ordinary  care  and  skill,  and  to  such  a  degree 
as  to  have  led  to  a  bad  result.  .  .  .  But  a  pro. 
fessed  physician  or  surgeon  is  bound  to  use  not 
only  such  skill  as  he  has,  but  to  have  a  reason- 
able degree  of  skill.  The  law  will  not  counte- 
nance quackery  ;  and  although  the  law  does  not 
require  the  most  thorough  education  or  the 
largest  experience,  it  does  require  that  an  unedu- 
cated ignorant  man  shall  not,  under  the  pretense 
of  being  a  well-qualified  physician,  attempt  reck- 
lessly and  blindly  to  administer  medicines  or 
perform  surgical  operations.  If  the  practitioner, 
however,  frankly  informs  his  patient  of  his  want 
of  skill,  or  the  patient  is  in  some  other  way  fully 


210         field's  medico-legal  guide. 

aware  of  it,  the  latter  cannot  complain  of  the 
lack  of  that  which  he  knew  did  not  exist  : 
Shearni.  &  Red.  on  Neg.,  §§  433-435.  See  also, 
in  support  of  the  foregoing  propositions,  Leigh- 
ton  V.  Sargent,  27  Me.  (7  Fost.)  468;  Reynolds 
V.  Graves,  3  Wis.  416;  Carpenter  v.  Blake,  60 
Barb.  (N.  Y.)  488  ;  Patten  v.  Wiggin,  51  Me. 
594;  Briggs  v.  Taylor,  28  Yt.  180;  Landon  v. 
Humphrey,  9  Conn.  209;  MacNevins  v.  Lowe, 
40  111.  209;  Smothers  v.  Hanks,  34  la.  2S6', 
Teft  V.  Wilcox,  6  Kan.  46;  Howard  v.  Grover, 
28  Me.  97;  Long  v.  Morrison,  14  Lid.  595; 
Com.  V.  Thompson,  6  Mass.  134;  Smothers  v. 
Hanks,  34  la.  286;  11  Am.  Rep.  141;  Small  v. 
Howard,  128  Mass.  131;  35  Am.  Rep.  363; 
Potter  V,  Warner,  91  Pa.  St.  362  ;  36  Am. 
Rep.  668. 

The  last  proposition  reminds  the  author  of  a 
case  said  to  be  found  in  the  judicial  records  of  the 
Mohammedans,  which  is  reported  as  follows  :  "A 
man  who  had  a  disease  in  his  eyes  called  on  a 
farrier  for  a  remedy,  and  he  applied  to  him  a 
medicine  commonly  used  for  his  patients ;  the 
man  lost  his  sight  and  brought  an  action  for 
damages,  but  the  judge  said  no  action  lies,  for  if 


CIVIL    LIABILITY   FOR   MALPRACTICE.         211 

the  compkiinant  had  not  been  himself  an  ass  he 
would  never  have  employed  a  farrier  : "  Jones 
on  Bailm.  100  ;  1  Field's  Lawyers'  Briefs,  sub. 
Bailments,  §  573.  See  also  Musser  v.  Chase,  29 
Ohio  St.  577. 

Continuing  the  subject  as  to  the  care  and  skill 
required  of  the  physician  and  surgeon,  and  their 
liability  for  the  proper  use  of  them,  we  jigain 
quote  from  our  favorite  authors  :  '•  The  standard 
of  skill  may  vary  according  to  circumstances,  and 
may  be  different  even  in  the  same  state  or  country. 
In  country  towns  and  in  unsettled  portions  of 
the  comitry  remote  from  cities,  physicians, 
though  well  informed  in  theory,  are  but  seldom 
called  upon  to  perform  difficult  operations  in 
surgery,  and  do  not  enjoy  the  greater  oppor- 
tunities of  daily  observation  and  practice  which 
large  cities  afford.  It  would  be  unreasonable  to 
exact  from  one  in  such  circumstances  that  hio^h 
degree  of  skill  which  an  extensive  and  constant 
practice  in  hospitals  or  large  cities  would  imply 
a  physician  to  be  possessed  of.  A  physician, 
though  inexperienced  and  unlearned,  may  in 
some  circumstances  undertake  an  operation,  and 
in  such  a  case  he  is  bound  only  to  use  the  best 


212         field's  medico-legal  guide. 

skill  he  has,  for,  as  has  been  before  remarked, 
'  Many  persons  would  be  left  to  die,  if  irregular 
surgeons  were  not  allowed  to  practice.' 
None  but  the  most  general  tests  of  a  physician's 
skill  can  be  stated  as  rules  of  law.  The  great 
variance  between  the  medical  theories  which  find 
acceptance  among  the  different  schools,  each  of 
which  has  its  sincere  and  devoted  adherents, 
and  each  being,  in  the  estimation  of  its  opponents, 
mete  quackery,  make  it  impossible  to  assert  as  a 
proposition  of  law  that  any  particular  system 
affords  an  exclusive  test  of  skill.  But  one  who 
professes  to  adhere  to  a  particular  school  must 
come  up  to  its  average  standard  and  must  be 
judged  by  its  tests,  and  in  the  light  of  the  present 
day.  Thus  a  physician  who  should  now  practice 
the  reckless  and  indiscriminate  bleeding  which 
was  in  high  repute  thirty  years  ago,  or  should 
shut  up  a  patient  in  fever  and  deny  all  cooling 
drinks,  would  doubtless  find  the  old  practice  a 
poor  excuse  for  his  imbecility.  So,  if  a  professed 
homoeopathist  should  violate  all  the  canons  of 
homoeopathy,  he  would  be  bound  to  show  some 
very  good  reasons  for  his  conduct,  if  it  was 
attended   v/ith    injurious    effects.      Upon   many 


CIVIL   LIABILITY    FOR    MALPRACTICE.        213 

points  of  medical  and  surgical  practice  all  of  the 
schools  are  asTreed,  and  indeed  common  sense 
and  universal  experience  prescribe  some  invari- 
able rules,  to  violate  which  may  generally  be 
called  o^ross  nesflio^ence.  .  .  .  The  state  of 
health  of  the  patient  may  have  much  weight  in 
determining  whether  ordinary  diligence  and  care 
have  been  used  by  the  attending  physician. 
What  might  be  deemed  ordinary  care  in  some 
circumstances  would  be  gross  negligence  in 
others.  A  disease  known  to  be  rapid  and 
dangerous  will  require  more  instant  and  careful 
attention  and  application  of  remedies,  than  one 
comparatively  harmless  and  requirhig  only  good 
nursing.  .  .  .  Aside  from  the  manipulation 
of  a  fractured  limb,  a  surgeon  has  to  contend 
with  very  many  powerful  and  hidden  influences, 
such  as  the  habits,  hereditary  tendencies,  vital 
force,  mental  state  and  local  circumstances  of  the 
patient.  While  on  the  one  hand  these  will  ex- 
plain his  ill  success  and  moderate  the  degree  of 
his  responsibility,  it  would  seem  that  heis])0und 
to  inform  himself  of  these  facts,  so  far  at  least  as 
they  would  be  likely  to  influence,  in  the  manage- 
ment of  the  case,  the  conduct  of  a  prudent  phy- 


214         field's  medico-legal  guide. 

siciaii.  We  should  say,  for  example,  that  a 
physician  about  to  administer  an  anaesthetic  is 
bound  to  inform  himself  as  to  the  condition  of 
the  patient's  heart,  lungs,  or  other  organs,  which, 
if  diseased,  would  warn  a  prudent  physician 
against  the  administration  of  that  beneficent 
agency:"  Shear.  &  Red.  on  Neg.,  §§  436-439. 

§  103.  Not  bound  to  use  the  highest  degree  of  skill. 

A  ph3'sician  or  surgeon  is  not  bound  to  use 
the  highest  degree  of  skill,  but  he  must  use 
reasonable  skill  and  dili^jence,  and  in  iudo:ino^  of 
this,  regard  must  be  had  to  the  advance  in  med- 
ical and  surgical  knowledge  and  the  improve- 
ments of  recent  times  :  Smothers  v.  Hanks,  34 
la.  286  ;  11  Am.  Rep.  141  ;  Almou  v.  Nugent, 
34  la.  300  ;  11  Am.  Rep.  147  ;  Hairc  v.  Reese, 
7  Phil.  (Pa.)  138  ;  Lamphier  v.  Phipos,  8  C.  & 
P.  (Eng.)  475  ;  O'Hara  v.  Wells,  14  Neb.  403  ; 
Elwell  on  Malp.  22-24,  204. 

§  104.  Implied  duty  of  the  physician  or  surgeon. 

If  a  person  holds  himselt  out  to  the  world  as  a 
physician  or  surgeon,  the  law  implies  a  duty  on 
his  part  to  exercise  reasonable  skill  and  diligence 


CIVIL    LIABILITY   FOR    MALPRACTICE.        215 

in  the  treatment  of  patients  he  may  l)e  called 
upon  to  attend,  and  does  attend,  in  a  professional 
capacity:  Patten  v.  Wiggin,  51  Me.  594;  Car- 
penter V.  Blake.  5  N.  Y.  696  ;  Keynolds  v. 
Graves,  3  Wis.  416  ;  Hoopingarner  v.  Levy,  77 
Ind.  455. 

But  he  does  not  impliedly  undertake  to  per- 
form a  cure,  nor  to  use  the  highest  possible  degree 
of  skill:  Haire  v.  Reese,  7  Phila.  (Pa.)  138; 
Lamphier  v.  Phipos,  8  Car.  &  P.  (Eng.)  475  ; 
Smothers  v.  Hanks,  34  la.  286  ;  11  Am.  Rep. 
141. 

If  more  than  ordinary  skill  and  care  is  ex- 
pected from  the  medical  man,  he  would  not  be 
liable  for  this  unless  an  express  contract  for  this 
purpose  be  made,  or  such  contract  is  to  be  fairly 
inferred  from  all  the  circumstances  of  the  case: 
McCandless  v.  McWha,  22  Pa.  St.  261  ;  Barnard 
V.  Means,  82  111.  379. 

A  medical  man  cannot  experiment  with  his 
patients  to  their  injury  without  liability  to  dam- 
age for  the  same  :  Patten  v.  Wiggin,  51  Me.  594. 

It  would  be  the  implied  duty  of  a  regular 
family  physician  or  one  who  had  usually  been 
called  to  attend  upon  a  family  or  an  individual, 


216         field's  medico-legal  guide. 

in  responding  to  a  call  for  professional  services  in 
such  a  case,  to  attend  the  case  so  long  as  it  re- 
quires attention,  unless  he  should  give  reasonable 
notice  declining  so  to  do,  or  is  discharged  by  the 
patient.  And  he  is  under  obligation  to  use 
ordinary  care  and  skill  not  only  in  his  attendance, 
but  in  determining  when  it  may  be  safely  and 
properly  discontinued.  But  it  is  competent  for 
a  physician  or  surgeon  and  his  patient  to  enter 
into  a  contract  limiting  the  attendance  for  a 
longer  or  shorter  period,  or  to  a  single  visit, 
or  the  frequency  of  the  visits  ;  and  without  this 
the  medical  man  may  elect  to  discontinue  his 
attendance  for  any  cause  or  without  cause,  upon 
giving  reasonable  notice  of  his  intention  to  do 
so  :  See  Ballou  v.  Prescott,  64  Me.  305  ;  Todd 
V.  Myers,  40  Cal.  357. 

§  105.  These  general  principles  applicable  to  dentists. 

It  may  be  observed  that  the  general  doctrine 
of  liability  for  malpractice  of  a  physician  or  sur- 
geon, above  indicated,  would  be  equally  applica- 
ble to  dentists ;  and  they  would  be  liable  in 
damages  for  injuries  inflicted  in  their  professional 
practice  and  operations   arising   from    want   of 


CIVIL    LIABILITY    FOR    MALPRACTICE.        217 

reasonable  care,  skill  and  attainments  iu  the  pro- 
fession :  Simonds  v.  Henry,  39  Me.  155.  But 
the  practice  of  dentistry  is  regulated  by  statutes 
in  various  states.  If  he  uses  chloroform  or  other 
anaesthetic  agent,  it  would  be  his  duty,  like  that 
of  the  physician  or  surgeon,  to  look  to  the  prob- 
able effect  ;  and,  generally,  it  would  be  his  duty 
to  inform  himself  as  to  the  condition  of  the  heart 
of  his  patient,  and  the  lungs  or  other  organs,  which, 
if  diseased,  would  warn  a  prudent  dentist,  phy- 
sician or  surgeon,  against  the  administration  of 
such  a  beneficent  agency,  in  the  practice  of  their 
respective  professions :  Bojde  v.  Winslow,  5 
Phila.  (Penn.)  136  ;  Shearm.  &  Ked.  on  Neg., 
§  439  ;  Jones  v.  Fay,  4  Fost.  &  F.  (Eng.)  525. 

§  106.  Instance  of  the  liability  of  a  physician  in  a  special 
case  of  impropriety. 

Where  a  physician  took  an  unprofessional  and 
unmarried  man  with  him  to  attend  a  confinement 
case,  and  no  necessity  existed  for  the  latter's 
assistance,  it  v/as  held  that  both  were  liable  in 
damages  to  the  woman,  and  that  the  right  to  re- 
cover was  not  affected  by  the  fact  that  the  patient 
and  her  husband  supposed  the  intruder  was  a 
medical  man,  and  therefore  submitted  without  ob- 


218         field's  medico-legal  guide. 

jectioii  to  his  presence  :  De  May  v.  Roberts,  46 
Mich.  160  ;  41  Am.  Rep.  154. 

§  107.  Proof  of  malpractice  ;  burden  of. 

On  this  subject  we  have  heretofore  stated  the 
general  rule  as  to  the  burden  of  proof,  as  fol- 
lows :  "As  to  the  order  of  the  production  of 
evidence,  it  is  held  that  the  burden  of  proving 
any  fact  lies  upon  the  part}^  who  substantially 
asserts  the  affirmative  of  the  issue,  and  such 
party  is  entitled  to  begin  and  reply.  In  gene- 
ral, the  party  commencing  the  proof  is  also  re- 
quired to  develop  the  whole,  and  go  through 
with  the  proof  of  his  whole  case  :"  3  Field's 
Lawyers'  Briefs,  §  310  ;  see  also  Powers  v.  Rus- 
sell, 13  Pick.  (Mass.)  69  ;  Crowningshield  v. 
Crowningshield,  2  Gray  (Mass.),  524  ;  1  Greenl. 
on  Ev.,  §  74  ;  Best  on  Ev.  (Morg.  Am.  ed.), 
Par.   637. 

It  follows  that,  in  an  action  against  a  phy- 
sician or  surgeon  for  damages  for  malpractice, 
where  there  is  a  denial  of  the  claim,  the  plaintiff 
must  affirmatively  prove  all  the  material  ele- 
ments of  the  negligence  charged  ;  and  if  want 
of  skill  or  knowledge  is  charged,  this  must  be 


CIVIL   LIABILITY    FOR   MALPRACTICE.        219 

affirmatively  shown  hy  the  plaintiff  by  a  prepon- 
derance of  evidence  before  he  can  claim  the  ver- 
dict of  a  jury  in  his  favor.  On  proof  of  the 
mode  of  treatment  by  a  physician  or  surgeon,  in 
a  particular  case,  it  would  be  competent  to  in- 
troduce expert  testimony  as  to  skill  or  want  of 
knowledge  :  Leighton  v.  Sargent,  31  N.  H.  (11 
Foster)  119  ;  Carpenter  v.  Blake,  60  Barb.  488. 
"The  defendant  may,  however,  produce  evi- 
dence of  his  general  skill,  where  an  issue  is  made 
upon  his  possession  of  skill,  and  not  merely  upon 
his  use  of  it.  And  where  there  is  much  doubt 
as  to  the  skillful ness  of  his  treatment  of  a  par- 
ticular case,  evidence  of  his  general  skillfulness 
will  be  material  upon  all  issues  of  the  case  ; 
for  if  he  had  skill  it  is  natural  to  presume  he 
would  use  it.  But  where  the  plaintiff  does  not 
question  the  defendant's  general  skillfulness,  evi- 
dence thereof  is  not  competent  on  behalf  of  the 
defendant,  in  a  case  not  otherwise  evenly  bal- 
anced. But  to  rebut  evidence  introduced  by  the 
defendant  to  support  his  general  professional 
character,  it  is  competent  to  show  that  he  was 
not  a  regular  bred  physician.  The  fact  that 
some    surgeons   approve   the   practice  adopted, 


220  field's    MEDICO-LEaAL    GUIDE. 

does  not  necessarily  preclude  a  jury  from  con- 
demning it  as  negligent,  if  the  decided  weight 
of  authority  is  to  that  effect:"  Shear.  &  Redf. 
on  Negligence  (3d  ed.),  §  442. 

The  want  of  proper  care  and  skill  may  be 
shown  by  evidence  of  the  mode  of  treatment 
pursued  by  the  defendant :  Leighton  v.  Sargent, 
31  K  H.  119  ;  Baird  z;.  Morford,  29  la.  531. 


CHAPTER   YIII. 


DAMAGES. 


§  108.  Matters  in  defense  or  mitigation. 

It  is  the  duty  of  every  person  to  use  reason- 
able care,  diligence  and  prudence,  not  only  to 
avoid  injuries  from  others,  but  to  avoid,  as  much 
as  possible,  damages  or  losses  from  the  wrongs  or 
torts  of  others. 

Although  a  patient  may  have  sustained  injury 
from  the  malpractice  of  his  ph3\sician  or  surgeon, 
if  there  be  on  the  part  of  the  patient  a  want  of 
ordinary  and  proper  diligence  and  care  to  avoid 
the  consequences  of  such  malpractice,  he  may  be 
chargeable  with  contributory  negligence,  and 
thereby  be  prevented  from  recovering  damages, 
or  at  least  limited  in  his  recovery  to  such  dam- 
ages as  could  not  have  been  avoided  by  the  exer- 
cise of  ordinary  and  reasonable  care  and  diligence, 
under  all  the  circumstances  of  the  case :  2 
Field's  Lawyers'  Briefs,  §§  445,  446.  See  also 
Harrison   v.    Berkley,    1    Strob.    (S.    C.)    548: 


222  field's  medico-legal  guide. 

Stover  V.  Bluehill,  51  Me.  439;  Dorwiii  v.  Potter, 
5  Deiiio  (N.  Y.),  306  ;  Walker  v.  Ellis,  1  Sneed 
(Teiiu.),  518  ;  Hamilton  v.  McPhersoii,  28  N.  Y. 
73  ;   Bennett    v.  Lockwood,  20    Weiid.  (N.  Y.) 

223  ;  Hassa  v.  Junger,  15  Wis.  598  ;  McGrew 
V.  Stone,  53  Pa.'  St.  436.  A  surgeon  may 
generally  be  liable  for  malpractice  in  short- 
ening a  limb  he  is  employed  to  set,  still  it  may 
be  otherwise  if  he  is  discharged  before  the 
proper  time  arrives  for  applying  the  proper 
treatment  to  prevent  shortening  :  Kendall  v. 
Brown,  74  111.  232. 

§  109.  In  case  of  contributory  negligence. 

A  physician  or  surgeon  is  liable  for  injury 
caused  his  patient  by  the  want  of  skill  and  dili- 
gence wdiich  an  intelligent  and  respectable  member 
of  the  profession  would  use  under  the  same  cir- 
cumstances. But  if  the  proximate  cause  of  the 
injury  was  the  neglect  of  the  patient  to  use  the 
remedies  prescribed,  or  if  he  aggravated  the 
case  by  his  own  misconduct,  the  physician  or  sur- 
geon would  not  be  liable  for  the  injury  caused  by 
such  misconduct  on  his  part:  Craig  v.  Chambers, 
17  Ohio  St.  253  j  McCaudless  v.  McWha,  22  Pa. 


BAMAGP^S.  223 

St.  261;  25  F'd.  St.  96;  Hibbiird  ?;.  Thompson,  109 
Mass.  288.  And  if  the  patient  contributes  to  his  in- 
jury by  failing  to  obej^the  reasonable  instructions 
of  his  physician  or  surgeon,  he  cannot  recover  for 
such  injury,  although  such  physician  or  surgeon 
may  have  failed  to  use  the  skill  and  diligence 
imposed  upon  him  by  law  :  4  Field's  L.  B.,  §  733; 
Geiselman  v.  Scott,  25  Ohio  St.  86  ;  McCandless 
V.  McWha,  25  Pa.  St.  95  ;  Hi1)bard  v.  Thomp- 
son, 109  Mass.  286  ;  Smith  v.  Smith,  9  Pick. 
(Mass.)  621.  But  where  one  has  received  a  per- 
sonal injury  from  the  negligence  of  another,  the 
dama<2fes  of  the  former  in  an  action  as^ainst  the 
latter  will  not  l3e  reduced  by  reason  of  his  not 
having  secured  the  most  skillful  medical  aid,  if 
he  used  reasonable  and  ordinary  care  :  32  la. 
324  ;   7  Am.  Eep.  200. 

§  110.  Punishment  for  the  crime  no  defense  to  civil  action. 
It  may  be  observed  that  a  trial  and  punishment 
for  criminal  malpractice  would  be  no  bar  to  a 
civil  action  for  damaoes  arisino-  therefrom,  nor 
would  it  aifect  the  right  of  the  injured  party  to 
recover  exemplary  damages  where,  according  to 
the  authoritative   decisions  of  the  courts  of  the 


224         field's  medico-legal  guide. 

states,  such  damages  are  allowable  :  Field  on 
Dam.,  §§  436-439  ;  Childs  v.  Drake,2  Met.  (Ky.) 
146  :  Heiidricksoii  v.  Kiiigsbuiy,  21  la.  379  ; 
Garland  v.  Wholeham,  28  la.  185  ;  Corvvin  v. 
Walton,  18  Mo.  71  ;  Cole  v.  Tucker,  6  Tex.  266  ; 
Hadley  v.  Watson,  45  Yt.  289  ;  Cook  v.  Ellis,  6 
Hill  (N.  Y.),  466  ;  Roberts  v.  Mason,  10  Ohio 
St.  277  :   Klopper  v.  Bromme,  28  Wis.  372. 

It  is  not  a  defense  to  a  suit  l^rou^ht  ag-ainst  a 
physician  or  surgeon  for  malpractice  that  the  de- 
fendant was  practicing  in  violation  of  the  statute, 
making  it  an  offense  to  practice  medicine  or  sur- 
gery without  certain  preliminary  qualifications, 
unless,  perhaps,  where  the  patient  or  employer 
knew,  when  employing  the  physician,  that  he  had 
not  the  proper  qualifications  :  Musser  v.  Chase, 
29  Ohio  St.  577. 

§  111.  The  measure  of  damages. 

The  rule  for  the  measure  of  damages,  in  case 
of  injuries  sustained  by  the  malpractice  of  a 
physician  or  surgeon,  would  be  the  same  as  in 
case  of  injuries  arising  from  negligence  of  com- 
mon carriers,  or  from  assault  and  battery.  The 
usual  elements  of  damages  in  such  a  case  would 
be  as  follows  : 


DAMAGES.  225 

1.  Loss  of  time  and  labor  arising  from  the  in- 
jury sustained  b}^  the  malpractice. 

2.  The  reasonable  expenses  incurred  for  sur- 
gical, medical  and  other  attendance  in  conse- 
quence thereof. 

3.  Diminished  capacity  to  work  at  the  trade 
or  business  of  the  injured  party  in  consequence 
thereof. 

4.  Bodily  pain  and  mental  anguish  in  conse- 
quence thereof:  Field  on  Dam.,  §  600. 

This  classification  embraces  only  the  elements 
of  the  direct  pecuniary  damages  which  may  be 
sustained  in  such  a  case. 

They  are  the  direct  and  immediate  injury  aris- 
ing from  malpractice.  But  it  has  been  held  in 
cases  where  the  principle  would  be  the  same 
that  in  estimating  damages  for  personal  injury, 
the  jury  may  take  into  consideration  the  fact  of 
permanent  disability,  and  probable  future  dis- 
ability and  suffering  j  and,  in  the  language  of  a 
distinguished  legal  author,  "whenever  the  ele- 
ments of  fraud,  malice,  gross  negligence,  or  op- 
pression mingle  in  the  controversy,  the  law, 
instead  of  adhering  to  the  system  or  even  the 
language  of  compensation,  adopts  a  wholly  dif- 


226  field's  medico-legal  guide. 

ferent  rule.  It  permits  the  jury  to  give  what  it 
terms  punitive,  vindictive  or  exemplary  damages; 
in  other  words,  blends  together  the  interests  of 
society  and  the  aggrieved  individual,  and  gives 
damages  not  only  to  recompense  the  sufferer,  but 
to  punish  the  offender :  "  Seg.  on  Dam.  38.  And 
see  Field  on  Dam.,  §  26  ;  2  Greenl.  on  Ev. 
§§  263-273  ;  Field's  Lawyers'  Briefs,  §§  429,  434^ 
436,  437,  438. 

In  an  action  to  recover  damages  for  malprac- 
tice the  plaintiff  is  not  in  any  case  entitled  to 
recover  anything  on  account  of  pain  and  suffer- 
ing caused  by  the  disease  or  injury,  but  only  for 
such  additional  pain  and  suffering  as  is  produced 
by  the  neghgence  or  want  of  proper  care  and 
skill  by  the  defendant :  Wenger  v,  Calder,  78 
111.  275. 


CHAPTER  IX. 


COMPENSATION. 


§  112.  The  contract  for  services  and  compensation  may 
be  express  or  implied. 

The  contract  between  a  physician  or  surgeon 
and  his  patient  or  employer  may  be  express  or 
implied,  and  if  express  it  may  be  specific  or  gen- 
eral, conditional  or  unconditional.  If  the  agree- 
ment is  formally  stated,  either  verbally  or  in 
writing,  it  is  an  express  contract ;  but  if  it  is  a 
matter  of  inference  or  deduction  from  the  acts 
and  conduct  of  the  parties,  and  the  circumstances 
attending  them,  it  is  an  implied  contract.  And 
in  the  latter  case  the  contract  may  be  enforced 
as  well  as  in  the  former,  as  by  a  fiction  of  law, 
30  to  speak,  the  parties  are  supposed  to  have 
made  those  stipulations  and  agreements  which  as 
nonest  and  Mr  men  they  ought  to  have  made, 
and  the  law  assumes  that  they  have  made  them. 
This  doctrine  is  universally  recognized  in  all 
cases  of  implied  contracts  j  and  it  may  be  ob- 


228         field's  medico-legal  guide. 

served  that  the  contract  between  the  physician 
or  surgeon,  and  his  patient  or  employer,  is  usually 
an  implied  one ;  the  services  being  rendered 
merely  on  the  express  or  implied  request  of  the 
latter:  See  Secoa  v.  True,  53  N.  H.  627;  Allen 
V.  Merchants'  Bank,  22  Wend.  215;  Bank  v. 
Wheeler,  48  N.  Y.  492;  Express  Co.  v.  Mc- 
Veigh, 20  Gratt.  (Ya.)  264;  Nevins  v.  Lowe,  40 
111.  209;  Ogden  v.  Saunders,  12  Wheat.  (U.  S.) 
341;  States  v.  Russell,  13  Wall.  (U.  S.)  623. 
An  employment  of  a  physician  by  a  husband  to 
attend  his  wife  would  be  presumed  to  continue 
through  the  illness,  though  the  wife  be  removed 
from  the  husband's  home  :  Potter  v.  Virgil,  67 
Barb.  (N.  Y.)  578.  Bat  if  there  be  an  express 
contract,  whether  verbal  or  in  writing,  that  will 
regulate  the  rights  of  the  parties  in  respect  to 
all  matters  covered  by  it,  and  no  contract  or 
stipulation  will  be  implied  to  aftect  such  con- 
tract. If,  however,  the  express  contract  em- 
braces only  a  part  of  the  subject-matter  of  it,  as 
where  there  is  a  stipulation  as  to  the  price  to  be 
paid  a  physician  or  surgeon  for  each  visit  to  the 
patient,  and  there  is  no  stipulation  as  to  the  num- 
ber or  frequency  of  the  visits,  or  the  skill  and 


COMPENSATION.  229 

care  to  be  bestowed,  the  former  would  be  fixed 
by  the  express  contract,  whereas  the  latter  would 
be  controlled  by  an.  implied  contract :  See  ante^ 
§  96;  Lynch  v:  Onondaga  Salt  Co.,  64  Barb.  (N- 
Y.)  558;  Creighton  v.  Toledo,  18  Ohio  St.  447; 
Walker  v.  Brown,  28  III.  378;  Ballou  v.  Pres- 
cott,  64  Me.  305. 

§113.  Common  presumptions;   amount  of  compensation 

implied. 

The  general  principles  of  the  law  relating  to 
master  and  servant  would  be  applicable  to  the 
physician  or  surgeon  and  his  patient  or  employer. 
Thus,  if  the  former  renders  services  to  the  latter 
by  his  request,  express  or  implied,  or  if  he  has 
knowledge  that  they  are  being  performed  under 
such  circumstances  as  raise  a  presumption  of 
employment,  and  especially  where  he  is  present 
and  assents  to  the  performance,  it  would,  in  the 
absence  of  proof  to  the  contrary,  raise  a  reason- 
able if  not  conclusive  presumption  of  a  contract 
between  the  parties  for  the  services,  and  of  an 
undertaking  on  the  part  of  the  latter  to  pay  so 
much  as  they  were  reasonably  woi'th  :  See  Cum- 
mins V.  Chambers,  75  Ind.  409.  The  following 
cases  illustrate  the  general  principles  on  this  sub- 


230         field's  medico-legal  guide. 

ject :  Cummiogs  v.  Nichols,  13  N.  H.  420  ; 
Christee  v.  Sawyer,  44  N.  H.  298  ;  Law  v. 
Eailroad  Co,,  45  N.  H.  370  ;  Weeks  v.  Holmes, 
12  Cush.  (Mass.)  215  ;  Academy  v.  Alien,  14 
Mass.  176  ;  Hurley  v.  Van  Wagoner,  28  Barb. 
(N.  Y.)  109  ;  Moreland  v.  Davidson,  71  Pa.  St. 
371 ;  Yan  Arman  v.  Boynton,  38  111.  443  ; 
Jones  V.  Quincey,  9  Gratt.  (Ya.)  708  ;  Martin 
V.  Fox,  19  Wis.  552  ;  Allen  v.  Eichmond  Col- 
lege, 41  Mo.  302.  In  the  case  last  cited  it  was 
observed  by  the  court :  ' '  No  person  can  by  offi- 
cious intermeddUng  cast  a  liability  upon  another, 
and  an  obligation  will  not  generally  be  imposed 
imless  there  has  been  a  previous  request  moving 
from  the  oblio^or  and  inurino^  to  the  oblio^ee.  But 
where  the  party  derives  a  benefit  from  the  con- 
sideration, or  the  act  done  is  beneficial,  his  sub- 
sequent express  promise  will  be  binding,  and  even 
his  subsequent  assent  will  be  sufficient  evidence 
upon  which  to  predicate  a  previous  request. 
Assent  may  be  implied  from  the  acts  of  another, 
or  his  silent  acquiescence :  "  See  Hapgood  v. 
Houghton,  10  Pick.  (Mass.)  154 ;  Munger  v. 
Munger,  33  N.  H.  581  ;  Aney's  Appeal,  49  Pa. 
St.  126- ;  De  Wolf?;.  Chicago,  2Q  111.  443  ;  Ford 


COMPENSATION.  231* 

V.  Ward,  26  Ark.  360  ;   Cooper  v.  Railroad  Co., 
13  N.  Y.  Supreme  Ct.  276. 

§  114.  Where  the  request  for  services  is  made  for  the 
benefit  of  another. 
If  a  mere  request  is  made  by  one  to  another  to 
do  some  act  or  perform  some  service  for  the  bene- 
fit of  a  third  party,  and  the  act  or  service  is  done 
with  the  knowledge  that  the  party  making  the 
request  will  derive  no  benefit  therefrom,  and  does 
not  expect  to  pay  for  the  same,  the  law  will  not 
imply  an  employment  by  the  latter,  and  there 
would  be  no  implied  promise  to  pay  therefor  : 
Norris  v.  Dodge,  23  Ind.  190.  Thus,  where  a 
person  requested  a  physician  to  render  some 
medical  assistance  to  his  brother,  in  an  action  by 
the  physician  against  the  person  making  the'  re- 
quest to  recover  for  the  services,  it  was  held  that 
in  order  to  recover  on  the  ground  of  a  request  it 
must  appear  that  the  person  making  it  intended 
to  pay  for  the  services,  and  that  both  parties 
understood  it  that  way  :  Smith  v.  Watson,  14 
Vt.  332.  See  also  Boyd  v.  Sappington,  4  Watts 
(Pa.),  247  ;  Williams  v.  Breckell,  37  Miss.  682  ; 
Bachelder  v.  McKinney,  36  Me.  555  ;  Kittridge 
V,  Newbury,  14  Mass.  448  j  Dunbar  v.  Williams, 


232         field's  medico-legal  guide. 

10  Johns.  (N.  Y.)  249  ;  Evarts  v.  Adams,  12 
Johns.  352  ;  Anderson  v.  Hamilton,  25  Pa.  St. 
75  ;  Bartholomew  v.  Jackson,  20  Johns.  (N.  Y.) 
28  ;  Percival  v.  Nevilla,  1  Nott  &  McC.  (S.  C.) 
452  ;  4  Field's  Lawyers'  Briefs,  §§581,  582. 

§  115.  Intrusive  and  voluntary  services. 

The  same  rule  would  apply  in  case  of  the  vol- 
untary and  intrusive  services  of  a  physician  or 
surgeon,  as  in  case  of  such  services  in  other 
cases.  We  have  heretofore  stated  the  general 
rule  of  law  in  such  cases  as  follows  :  "  If  a  per- 
son gratuitously  or  voluntarily  renders  services 
to  another,  without  expectation  of  compensation 
or  reward,  or  without  the  assent  or  request  of 
the  latter,  express  or  implied,  no  recovery  can  be 
had  therefor,  however  meritorious  they  may  have 
been,  as  it  is  a  principle  of  the  law  that  a  person 
cannot  make  another  his  debtor  without  his  as- 
sent :  4  Field's  Lawyers'  Briefs,  §  580  ;  Bar- 
tholomew V.  Jackson,  supra  ;  Lee  v.  Lee,  6  Gr.  & 
J.  (Md.)  316  ;  Hertzog  v.  Hertzog,  29  Pa.  St. 
465  ;  Doane  v.  Badger,  12  Mass.  65  ;  Mumford 
V.  Brown,  6  Cow.  (N.  Y.)  475  ;  Watson  v.  La- 
do  ux,   8  La.   An.   6S  -,    Levee  Com.  v.  Harris^ 


COMPENSATION.  233 

20  La.  An.  291.  But  meritorious  services 
voluntarily  rendered  will  constitute  a  valid  con- 
sideration for  a  promise  thereafter  made  to  pay 
for  the  same  :  Davidson  v.  Davidson,  13  N.  J. 
Eq.  246  ;  Grandier  v.  Reading,  10  N.  J.  Eq. 
370  ]  Snyder  v.  Castor,  4  Yeates  (Pa.)  353  ;  Lee 
V.  Lee,  6  G.  &  J.  (Md.)  316. 

§  116.  Measure  of  value  of  services. 

The  value  of  the  services  of  a  physician  or 
surgeon  may  depend  upon  a  variety  of  circum- 
stances, as  upon  the  nature  and  character  of  the 
disease  or  other  physical  or  mental  affliction  of 
the  patient ;  the  amount  of  knowledge  and  skill 
required  in  the  treatment ;  the  circumstances 
under  which  the  services  were  rendered ;  the 
difficulties  and  expenses  attending  them,  and  the 
responsibilities  devolving  upon  him  :  See  Com- 
missioners V.  Chambers,  75  Ind.  409  ;  Coms.  v. 
Brewingtown,  74  Ind.  7. 

In  a  recent  case  it  was  held  that  a  physician, 
claiming  for  his  services,  may  properly  consider 
the  patient's  ability  to  pay.  And  where  a  phy- 
sician claimed  $2,000  for  services  in  ox)erating 
upon  a  cancerous  stricture    of  the  oesophagus. 


234         field's  medico-legal  guide. 

and  it  appeared  on  the  trial  that  the  patient's 
estate  was  of  the  value  of  between  seven  and 
eight  thousand  dollars,  and  the  jury  rendered  a 
verdict  for  only  $500,  on  appeal,  the  Supreme 
Court  of  Louisiana,  increased  the  amount  to 
$1,000. 

§  117.  Judgment  for  services  a  bar  to   action  for  mal- 
practice. 

On  general  principles,  it  may  be  observed  that, 
if  a  judgment  is  recovered  by  a  physician  or  sur- 
geon against  his  patient  for  services,  the  latter 
cannot,  at  least  under  the  modern  practice,  after- 
wards maintain  an  action  as^ainst  the  former  for 
malpractice  in  performing  the  services,  especially 
if  the  latter  had  knowleds^e  of  the  alleojed  mal- 
practice,  and  could  have  interposed  it  as  a  defense 
to  the  original  suit,  and  have  claimed  therein 
damages  for  the  alleged  malpractice,  by  way  of 
counter-claim  :  Blair  v.  Bartlett,  75  N.  Y.  150. 
See  also  Actions  and  Defenses,  1  Field's  L.  B., 
§  9]. 


§  118.  Statutes  regulating  the  collection  of  compensation. 

In  various  states  there  are  statutes,  regulating 

the  collection  of  fees  of  physicians  and  surgeons, 


COMPENSATION.  235 

and  the  practice  of  medicine.  In  some  of  them 
they  cannot  recover  for  their  services  unless  they 
have  a  diploma,  and  in  others  unless  they  are 
licensed  to  practice  medicine  by  a  board  ap- 
pointed for  this  purpose  under  statutes  :  Ante, 
§90. 

Thus  in  Georgia  a  physician  cannot  recover 
for  his  services  unless  he  shows  that  he  is  licensed 
as  provided  by  statute,  or  unless  he  shows  him- 
self to  be  within  the  proviso  in  favor  of  phy- 
sicians who  were  in  practice  before  the  statute 
was  adopted  :  8  Ga.  74. 

So  in  Alabama  and  Missouri  an  unlicensed 
physician  cannot  recover  for  professional  services: 
21  Ala.  680  ;   15  Mo.  407. 

So  in  Wisconsin,  he  cannot  recover  for  his 
services  unless  he  has  a  diploma.  But  it  has  there 
been  held  that  in  an  action  by  a  practicing  phy- 
sician for  personal  injuries,  he  may  claim  dam- 
ages for  being  rendered  unable  to  continue  his 
practice,  although  he  had  lU)  diploma  :  McNa- 
mara  v.  Clintonville,  62  Wis.  207.  And  in  an 
action  for  medical  services  it  has  been  held  that 
it  will  be  presumed  that  the  plaintiff  has  one 
until  the  contrary  is  shown  :  Thon:[:son  v.  Sayre, 


236         field's  medico-legal  guide. 

1  Denio  (N.  Y.),  175  ;  Crane  v.  McLaw,  12  Rich. 
(S.  C.)  129  ;  but  see  Adams  v.  Stuart,  5  Harr. 
(Del.)  144 ;   Bower  v.  Smith,  8  Ga.  74. 

Simihir  statutes  will  be  found  in  other  states, 
which  must  be  consulted  when  information  is 
desired  on  this  subject,  in  the  state  where  it  is 
required. 

In  Massachusetts,  where  the  wife  of  the  defend- 
ant, being  affected  by  a  dangerous  disease,  was 
carried  by  him  to  a  distance  from  his  residence 
and  left  under  the  care  of  the  plaintiff  as  a  sur- 
geon, and  after  the  lapse  of  some  weeks  the  plain- 
tiff performed  an  operation  on  her  for  a  cure  of 
the  disease,  soon  after  which  she  died,  it  was 
held,  in  an  action  by  the  plaintiff  against  the  de- 
fendant to  recover  compensation  for  his  services, 
that  the  performance  of  the  operation  was  within 
the  scope  of  the  plaintiff's  authority  if,  in  his 
judgment,  it  was  necessary  and  expedient,  and 
that  it  was  not  incumbent  on  him  to  prove  that 
it  was  necessary  or  proper  under  the  circum- 
stances, or  that  before  he  performed  it  he  gave 
notice  to  the  defendant,  or  that  it  would  have 
been  dangerous  to  the  wife  to  wait  until  notice 
could  be  given  to  the  defendant  :  19  Pick. 
(Mass.)  333. 


COMPENSATION.  237 

If  a  physician  carries  a  contagious  disease  into 
the  family,  on  a  suit  for  his  services,  this  may  be 
shown  to  defeat  his  right  or  to  reduce  the  amount 
of  his  claim  :   12  B.  Mon.  (Ky.)  465. 

And  an  agreement  between  physicians  where- 
by, for  a  money  consideration,  one  promises  to 
use  his  influence  with  his  patrons  to  obtain  their 
patronage  for  the  other,  is  lawful  and  not  void  as 
contrary  to  public  policy  :  39  Conn.  326  ;  12 
Am.  Eep.  390. 

§  119.  Proof  of  a  diploma  from  a  medical  college. 

A  diploma  from  a  medical  college  may  be 
proved  by  one  who  identifies  the  corporate  seal 
and  the  genuineness  of  the  signatures  of  the 
officers  by  a  comparison  with  a  diploma  granted 
by  the  same  college  to  himself  and  by  those 
granted  to  others  :  Finch  v.  Gridley,  25  Wend. 
(N.  Y.)4  69, 


CHAPTER  X. 


MEDICAL    ETHICS. 


§  120.  Code  of  medical  ethics  of  the  State  of  New^  York. 

The  Medical  Societ}^  of  the  State  of  New 
York,  in  1882,  adopted  the  following  Code  of 
Medical  Ethics  : 

As  to  the  relations  of  physicians  to  the  pub- 
lic, the  code  provides  as  follows  : 

"  It  is  derogatory  to  the  dignity  and  interests 
of  the  profession  for  physicians  to  resort  to 
public  advertisements,  private  cards,  or  hand- 
bills, inviting  the  attention  of  individuals  affected 
with  particular  diseases  ;  publicly  offering  advice 
and  medicine  to  the  poor  without  charge,  or 
promising  radical  cures  ;  or  to  publish  cases  or 
operations  in  the  daily  prints,  or  to  suffer  such 
publications  to  be  made  ;  or  through  the  medium 
of  reporters,  or  interviewers,  or  otherwise,  to 
permit  their  opinions  on  medical  or  surgical 
questions  to  appear  in  the  newspapers  ;  to  invite 
laymen  to  be  present  at  operations  j  to  boast  of 


MEDICAL    ETHICS.  239 

cures  and  remedies  ;  to  adduce  certificates  of 
skill  and  success,  or  to  perform  other  similar  acts. 
It  is  generally  derogatory  to  professional  char- 
acter, and  opposed  to  the  interests  of  the  profes- 
sion, for  a  physician  to  hold  a  patent  for  any 
surgical  instrument  or  medicine,  or  to  prescribe 
a  secret  nostrum,  whether  the  invention  or  dis- 
covery or  [be  the]  exclusive  property  of  himself 
or  others.  It  is  also  reprehensible  for  physicians 
to  give  certificates  attesting  the  efficacy  of  pat- 
ented medical  or  surgical  appliances,  or  of  pat- 
ented, copyrighted  or  secret  medicines,  or  of 
proprietary  drugs,  medicines,  wines,  mineral 
waters,  health  resorts,  etc  :  "  Trans.  Med.  Soc. 
(K  Y.)  1882,  p.  74. 

As  to  the  rules  governing  consultations,  the 
code  provides  as  follows  : 

"  Members  of  the  Medical  Society  of  the  State 
of  New  York,  and  of  the  medical  societies  in  af_ 
filiation  therewith,  may  meet  in  consultation 
legally  qualified  practitioners  of  medicine. 
Emergencies  may  occur  in  which  all  restrictions 
should,  in  the  judgment  of  the  practitioner,  yield 
to  the  demands  of  humanity. 

"To  promote  the  interests  of  the  medical  pro- 


240  riELD^S   MEDICO-LEGAL    GUIDE. 

fession  and  of  the  sick,  the  following  rules 
should  be  observed  in  conducting  consultations  : 

"  (1)  The  examination  of  the  patient  by  the 
consulting  physician  should  be  made  in  the  pres- 
ence of  the  attending  physician,  and  during  such 
examination  no  discussion  should  take  place,  nor 
any  remarks  as  to  the  diagnosis  or  treatment,  be 
made.  When  the  examination  is  completed  the 
physicians  should  retire  to  a  room  by  themselves, 
and  after  a  statement  by  the  attending  physician 
of  the  history  of  the  case,  and  of  his  views  of 
the  diagnosis  and  treatment,  each  of  the  consult- 
ing physicians,  beginning  with  the  youngest, 
should  deliver  his  opinion.  If  they  arrive  at  an 
agreement,  it  will  be  the  duty  of  the  attending 
physician  to  announce  the  result  to  the  patient, 
or  to.  some  responsible  member  of  the  family, 
and  to  carry  out  the  plan  of  treatment  agreed 
upon. 

"  (2)  If,  in  the  consultation,  there  is  found  to 
be  an  essential  difference  of  opinion  as  to  diag- 
nosis or  treatment,  the  case  should  be  presented 
to  the  patient,  or  some  responsible  member  of 
the  family,  as  plainly  as  possible,  to  make  such 
choice,  or  pursue  such  course,  as  may  be  thought 
best. 


MEDICAL    ETHICS.  241 

"  (3)  In  case  of  acute,  dangerous  or  obscure 
illness,  the  consulting  physician  should  continue 
his  visits  at  such  intervals  as  may  be  deemed 
necessary  by  the  patient  or  his  friends,  by  him 
or  by  the  attending  physician. 

"  (4)  The  utmost  punctuality  should  be  ob- 
served in  the  visits  of  physicians  when  they  are 
to  hold  consultations  ;  but  as  professional  engage- 
ments may  interfere  or  delay  one  of  the  parties, 
the  physician  who  first  arrives  should  wait  for 
his  associates  a  reasonable  period,  after  which  the 
consultation  should  be  considered  as  postponed 
to  a  new  appointment.  If  it  be  the  attending 
physician  who  is  present,  he  will  of  course  see 
the  patient  and  prescribe,  but  if  it  be  the  con- 
sulting physician  he  should  retire,  except  in  an 
emergency  or  when  he  has  been  called  from  a 
considerable  distance,  in  Tvhich  latter  case  he  may 
examine  the  x^atient  and  give  his  opinion  in  writ- 
ing and  under  seal,  to  be  delivered  to  his  asso- 
ciates :  "  Id. 

As  to  the  relations  of  physicians  to  each  other 
the  code  provides  as  follows  : 

"  (1)  All  practitioners  of  medicine,  their  wives 
and  children,  while  under  paternal  care,  are  en- 


242         field's  medico-legal  guide. 

titled  to  the  gratuitous  services  of  any  one  or 
more  of  the  faculty  near  them  whose  assistance 
may  be  desired.  Gratuitous  attendance  cannot, 
however,  be  expected  from  physicians  called  from 
a  distance,  nor  need  it  be  deemed  obligatory 
when  opposed  by  both  the  circumstances  and  the 
preferences  of  the  patient. 

"  (2)  The  affairs  of  life,  the  pursuit  of  health  and 
the  various  accidents  and  contingencies  to  which 
a  medical  man  is  peculiarly  exposed  may  require 
him  temporarily  to  withdraw  from  his  duties  to 
his  patients  and  to  request  some  of  his  profes- 
sional brethren  to  officiate  for  him.  Compliance 
with  this  request  is  an  act  of  courtesy  which 
should  always  be  performed  with  the  utmost  con- 
sideration for  the  interests  and  character  of  the 
family  physician,  and  when  exercised  for  a  short 
period,  all  the  pecuniary  obligations  of  such  ser- 
vice should  be  awarded  to  him.  But  if  a  mem- 
ber of  the  profession  neglect  his  business  in  quest 
of  pleasure  or  amusement,  he  cannot  be  consid- 
ered as  entitled  to  the  advantages  of  the  frequent 
and  long  continued  exercise  of  this  fraternal 
courtesy  without  awarding  to  the  physicians  who 
officiated  the  fees  arising  from  the  discharge  of 
his  professional  duties. 


MEDICAL   ETHICS.  243 

"  (4)  111  obstetrical  and  important  surgical 
cases,  which  give  rise  to  unusual  fatigue,  anxiety 
and  responsibility,  it  is  just  that  the  fees  accruing 
therefrom  should  be  awarded  to  the  physician 
who  officiates. 

"  (5)  Diversity  of  opinion  and  opposition  of  in- 
terest may,  in  the  medical  as  well  as  in  the  other 
professions,  occasion  controversy  and  even  con- 
tention. Whenever  such  cases  unfortunately  oc- 
cur, and  cannot  be  immediately  terminated,  they 
should  be  referred  to  the  arbitration  of  a  suffi- 
cient number  of  physicians,  before  appealing  to  a 
medical  society,  or  the  law,  for  settlement. 

"  (6)  If  medical  controversies  are  brought  be- 
fore the  public  in  newspapers  or  pamphlets  by  con- 
tending medical  writers,  and  give  rise  to,  or  con- 
tain assertions  or  insinuations  injurious  to  the 
personal  character  or  professional  qualiiications 
of  the  parties,  the  effect  is  to  lower,  in  the  esti- 
mation of  the  public,  not  only  the  parties  directly 
involved,  but  also  the  medical  profession  as  a 
whole.  Such  publications  should  therefore  be 
brought  to  the  notice  of  the  county  societies 
having  jurisdiction,  and  discipline  inflicted,  as  the 
case  may  seem  to  require  :  "  Trans,  of  Med.  Soc. 
N.  Y.,  1882,  pp.  74,  75. 


244         field's  medico-legal  guide. 

Ill  conclusion,  it  may  be  observed  that  similar 
codes  or  rules  of  medical  ethics  will  be  found  in 
various  other  states.  The  author  inserts  those 
found  in  the  Transactions  of  the  Medical  Society 
of  New  York ;  but  these,  in  the  main,  are  but 
the  generally  recognized  rules  of  ethics  observed 
by  the  respectable  members  of  the  profession, 
without  the  formal  declaration  of  any  positive 
rules,  or  the  adoption  of  a  code  of  ethics,  re- 
quiring their  observance. 


APPENDIX. 


Opinion  as  to  the  Constitutionality  of  the 
Iowa  Statute  "Regulating  the  Prac- 
tice OF  Medicine." 

Since  the  preparation  of  the  preceding  pages, 
the  author's  attention  has  been  called  to  the 
opinion  of  Hon.  C.  C.  Nourse,  Attorney- General 
of  Iowa,  as  to  the  constitutionality  of  the  Iowa 
statute  "Regulating  the  Practice  of  Medicine." 
The  provisions  of  the  act  are  set  forth  in  the 
opinion,  which  is  as  follows  : 

"  The  act  in  question  purports  to  be  an  exercise 
by  the  General  Assembly  of  the  'police  power 
of  the  state  for  the  preservation  of  the  health  of 
the  people,'  and  can  be  justified  only,  if  at  all, 
upon  that  ground.  The  principle  provisions  of 
the  act  are  as  follows  : 

^^  First.  It  requires  every  person  within  the 
state,  who  assumes  the  duties  of  a  physician, 
surgeon  or  obstetrician,  or  who  publicly  professes 
to  '  cure  or  heal  by  any  means  whatsoever,'  to 


246  APPENDIX. 

previously  obtain  a  license  from  the'state  board 
of  health.  The  conditions  upon  which  this  license 
can  be  obtained  are  : 

"  1st,  To  hold  a  diploma  from  a  medical  school 
that,  in  the  opinion  of  the  board,  is  legally  or- 
ganized and  in  their  judgment  is  in  good  stand- 
ing ;  or, 

"  2d,  To  have  practiced  in  the  state  for  five 
consecutive  years ;  three  years  of  which  shall 
have  been  in  one  locality  ;  or, 

"  3d,  To  answer  in  writing  and  satisfactorily, 
such  a  percentage  of  written  questions,  to  be  sub- 
mitted by  the  board  of  health,  as  they  may  de- 
termine shall  be  sufficient,  and 

"  4th,  To  pay  two  dollars  for  a  certificate  for 
the  first  and  second  classes  above  specified,  and 
ten  dollars  for  the  examination  specified  for  the 
third  class. 

"  The  8th  section  of  the  act  provides  : 

"  First.  That  women,  who  are  engaged  in  the 
practice  of  midwifery,  at  the  time  of  the  taking 
effect  of  the  act,  may  continue  in  the  business 
without  license.  It  also  permits  the  sale  of  patent 
medicines  and  the  advertising,  selling  and  pre- 
scribing of  natural  mineral  waters,  provided,  they 
flow  from  a  well  or  spring. 


APPENDIX.  247 

' '  The  act  also  permits  gratuitous  services  in 
cases  of  emergency,  by  unlicensed  persons.  The 
penalty  prescribed  for  violating  the  provisions  of 
the  act,  is  a  fine  of  not  less  than  fifty  dollars  or 
more  than  one  hundred  dollars,  or  imprisonment 
not  less  than  ten,  or  more  than  thirty  days  in  the 
county  jail. 

"The  constitutional  provisions  designed  to 
protect  the  people  against  monopolies  and  unjust 
discriminations  are  as  follows  : 

"•First,  Art.  4,  sec.  2  of  the  Constitution  ol 
the  United  States  provides  that,  '  The  citizens  of 
each  state  shall  be  entitled  to  all  privileges  and 
immunities  of  citizens  of  the  several  states.' 

"And  the  14th  amendment  provides  as  fol- 
lows : 

"  '  No  state  shall  make  or  enforce  any  law  which, 
shall  abridge  the  privileges  or  immunities  of  citi- 
zens of  the  United  States.  Nor  shall  any  state 
deprive  any  person  of  life,  liberty  or  property, 
without  due  process  of  law,  nor  deny  to  any 
person  within  its  jurisdiction  the  equal  protec- 
tion of  the  law.' 

"The  Constitution  of  the  State  of  Iowa  con- 
tains the  following  in  the  '  Bill  of  Rights  : ' 


248  APPENDIX. 

" '  Sec.  1.  All  men  are,  by  nature,  free  and 
equal,  and  have  certain  inalienable  rights,  among 
which  are  those  of  enjoying  and  defending  life 
and  liberty,  acquiring,  possessing  and  protecting 
property,  and  pursuing  and  obtaining  safety  and 
happiness. 

"  '  Sec.  6.  All  laws  of  general  nature  shall  have 
a  uniform  operation  ;  the  general  assembly  shall 
not  grant  to  any  citizen  or  class  of  citizens  priv- 
ileges and  immunities  which  upon  the  same  terms 
shall  not  belong  to  all  citizens.' 

' '  In  ascertaining  or  testing  the  constitutionality 
and  validity  of  the  law  in  question,  the  first  point 
to  be  settled  is  the  rule  of  criterion  by  which  we 
are  to  be  governed.  The  Supreme  Court  of  West 
Virginia,  in  the  case  of  State  v.  Dent,  25  W.  V. 
-1,  sustaining  an  act  of  their  legislature,  similar  in 
many  respects  to  the  Iowa  enactment,  adopts  as 
the  rule  to  be  followed  in  such  cases  the  language 
of  Judge  Hawley,  in  the  case  of  JEx  'parte  Spincy, 
10  Nev.  328,  which  is  as  follows  :  '  I  entertain 
no  doubt  that  among  the  inherent  privileges 
of  the  citizens  of  a  free  country  is  the  right  to 
pursue  a  lawful  calling  in  a  lawful  manner,  that 
is,  subject  to  such  restrictions  and  none  others,  as 


APPENDIX.  249 

may  be  deemed  necessary  for  the  public  welfare. 
What  restrictions  are  necessary  in  that  view  it  is 
the  province  of  the  legislature  to  decide,  and  its 
cfecision,  no  matter  how  ill-advised  it  may  appear 
to  be,  is  binding  on  the  court  whenever  it  appears 
to  have  been  based  on  motives  of  policy  err  general 
expediency.  But  when  the  law  excludes  a  class 
of  citizens  from  the  pursuit  of  a  useful,  honor- 
able and  profitable  avocation,  and  there  is  no 
assignable  motive  of  policy  oi  expediency  to  jus- 
tify the  exclusion,  or  in  other  words,  when  it  is 
apparent  that  the  whole  scope  and  object  of  the 
law  is  to  make  a  forbidden  discrimination,  with- 
out looking  to  the  attainment  of  any  public  ben- 
efit, I  think  a  court  should  not  hesitate  to  say 
such  a  law  is  forbidden  by  the  Constitution.' 

"The  Supreme  Court  of  Illinois,  in  the  case 
of  Yeazelle  v.  Alexander  et  al.,  ^'^  111.  Eep.  258, 
SDeakino^  of  the  rio^ht  of  the  leoislature  of  that 
state,  under  the  exercise  of  the  police  powers  to 
prohibit  the  importation  or  keeping  of  Texas 
cattle  in  that  state,  uses  the  followino*  lano-uaore  : 
'  It  is  true  that  the  power  of  the  legislature  is 
not  arbitrary  and  unrestricted.  We  cannot  rec- 
ognize wholly  unrestrained  power  in  this  country. 


250  APPENDIX. 

"We  concede,  too,  that  the  discretion  must  be  rea- 
sonable and  should  not  be  exercised  in  such  a 
manner  as  to  subvert  natural  and  constitutional 
rights.  In  case  of  a  glaring  abuse  of  power, 
the  courts  might  properly  interpose  to  arrest  a 
remedy  which  might  be  worse  than  the  mischief 
proposed  to  be  avoided.  But  when  there  is  rea- 
sonable cause  for  the  action  of  the  legislative 
department,  its  determination  ought  not  to  be 
disturbed.  Its  motive  in  the  enactment  cannot 
be  inquired  into.  The  facts  and  conditions  of 
things  which  render  a  law  necessary  for  the  pub- 
lic welfare  are  generally  to  be  judged  by  the 
legislature.' 

"The  above  cases,  I  believe,  state  the  rule  as 
claimed  by  those  who  favor  such  legislation  as 
that  under  consideration,  and  is  the  basis  upon 
which  it  has  been  sustained.  Stripped  of  all 
verbiage  and  circumlocution,  it  is  :  That  because 
the  legislature  has  power  to  enact  laws  for  the 
preservation  of  the  public  health,  that  any  law 
it  may  enact  under  color  of  the  exercise  of  that 
authority  must  be  sustained  by  the  court,  unless 
the  law  is  so  manifestly  absurd  that  the  court 
cannot  imagine  any  reasonable  motive  for  its 


APPENDIX.  251 

enactment  as  a  police  regulation.  The  case  above 
cited  from  58  111.  Rep.,  was  taken  to  the  Supreme 
Court  of  the  United  States  and  was  by  that  court 
reversed,  and  a  different  and,  I  think,  more  rea- 
sonable rule  of  construction  was  adopted.  The 
case  is  reported  in  95  U.  S.  473.  The  court  says  : 
'  The  Supreme  Court  of  Illinois  refused  to  inquire 
whether  the  prohibition  did  not  extend  beyond 
the  danger  to  be  apprehended,  and  whether, 
therefore,  the  statute  was  not  something  more 
than  the  exercise  of  a  police  power.  That  in- 
quiry, they  have  said,  was  for  the  legislature  and 
not  for  the  court.  In  this  we  cannot  concur. 
The  police  power  of  a  state  cannot  obstruct  for- 
eign commerce  or  inter-state  commerce  beyond 
the  necessity  for  its  exercise  ;  and  under  color  of 
it,  objects  not  within  its  scope  cannot  be  secured 
at  the  expense  of  the  protection  afforded  by  the 
Constitution.' 

"  In  the  case  of  Hendei'son  v.  The  Mayor  of 
New  York,  92  U.  S.  268,  the  Supreme  Court  of 
the  United  States  lays  down  the  rule  as  follows : 
'  III  whatever  language  a  statute  may  be  framed, 
it  purpose  must  be  determined  by  its  natural  and 
reasonable  effect.' 


252  APPENDIX. 

"  Non-residence  cannot  be  made  a  disqualifica- 
tion for  the  pursuit  of  any  calling  or  trade  in  any 
state  of  the  Union.  A  few  adjudicated  cases 
upon  other  statutes,  where  such  discrimination 
was  sought  to  be  made,  I  will  refer  to.  In  the 
case  of  the  City  ofMarshalltown  v.  Blum,  58  Iowa, 
184,  an  ordinance  of  the  city  of  Marshalltown  re- 
quired a  license  of  twenty-five  dollars  from  all 
persons  selling  merchandise  on  the  streets,  but 
excepted  from  the  provisions  of  the  ordinance  all 
persons  retailing  their  own  productions  or  their 
own  manufacture,  if  they  resided  in  Marshall 
county^  or  if  the  goods  were  manufactured  in 
Marshall  county. 

"  The  Supreme  Court  of  Iowa,  following  and 
citing  the  decision  of  the  Supreme  Court  of  the 
United  States  in  the  case  of  Welton  v.  The  State 
of  Missouri,  91  U.  S.  275,  held  this  ordinance 
unconstitutional  and  void.  The  court  says  the 
ordinance  is  void  because  it  discriminates,  not 
only  as  to  the  place  of  production  of  the  merchan- 
dise, but  also  the  place  of  residence  of  the  peddler. 
The  ruling  in  this  case  is  followed  by  our  Su- 
preme Court  in  the  case  of  The  Town  of  Pacific 
Junction  v.  Dyer,  64  Iowa,  38. 


APPENDIX.  253 

"  The  case  of  Weltoii  v.  The  State  of  Missouri 
was  that  of  a  vender  of  sewing  machines  not 
manufactured  in  the  state  of  Missouri,  and  who 
was  convicted  of  violating  a  penal  statute  of  the 
state  of  Missouri,  requiring  all  persons  going 
from  place  to  place  and  selling  goods,  wares  and 
merchandise,  within  the  state,  not  the  growth, 
produce  or  manufacture  of  that  state,  except 
books,  maps,  etc.,  to  take  out  a  license  and  to 
pay  a  certain  sum  tlierefor.  The  court  held  the 
act  was  a  restraint  upon  inter-state  commerce, 
and  as  such  violated  that  provision  of  the  Consti- 
tution of  the  United  States  that  gave  to  Congress 
the  exclusive  power  to  regulate  commerce  be- 
tween tne  states.  The  case  of  Ward  v.  The  State 
of  Maryland,  12  Wallace,  423,  is,  however,  more 
in  point.  That  was  an  act  of  the  legislature  of 
Maryland  attempting  to  tax  non-resident  mer- 
chants doing  business  within  the  state,  according 
to  a  schedule  based  upon  their  average  stock  in 
trade.  The  tax  was  in  the  form  of  an  annual 
license,  varying  from  fifteen  to  one  hundred  and 
fifty  dollars,  according  to  the  amount  of  stock  in 
trade. 

^f  w  tF  "JF  *  "Tr  "TP  "'t  •?? 


254  APPENDIX. 

"  Some  of  the  states  have  no  provisions  at  all 
in  their  constitutions  prohibiting  monopolies,  but 
the  organic  law  of  Iowa  is  very  specific.  Both 
sections  1  and  6  of  the  Bill  of  Rights  in  letter 
and  spirit  forbid,  I  think,  such  legislation  as  this. 

"The  right  to  acquire,  possess  and  protect 
propert}^  is  declared  to  be  an  inalienable  right. 
To  justify,  therefore,  the  legislature  prohibiting 
a  man  from  employing  another,  or  from  being 
employed  by  him,  a  public  necessity  must  exist 
for  such  a  prohibition.  It  must  not,  in  my  judg- 
ment, be  a  theoretical,  imaginary  or  possible  ne- 
cessity. To  admit  of  this  is  at  once  to  fritter 
away  the  protection  of  the  citizen  intended  by 
the  Constitution.  To  make  the  legislature  the 
exclusive  judge  of  the  existence  of  such  a  neces- 
sity is  to  make  omnipotent  for  evil  the  very  power 
that  the  Constitution  intended  to  restrain. 

"  Section  6  prohibits  the  granting  to  any  cit- 
izen or  class  of  citizens  privileges  or  immunities 
which,  upon  the  same  terms,  shall  not  equally 
belong  to  all  citizens. 

"  It  will  not  do  to  say  that  any  mental  or 
literary  qualification  may  be  prescribed,  and 
that  if  the  citizen  does   not   come   up   to  the 


APPENDIX.  255 

standard  he  may  be  excluded  from  the  exercise 
of  an  important  inalienable  right  or  privilege. 

"  Equality  before  the  law  does  not  mean  that 
men  of  certain  intellectual  attainments  or  mental 
endowments  shall  have  certain  rights,  and  those 
who  fall  short  of  them  shall  not  exercise  them. 
If  college  graduates  alone  were  permitted,  under 
the  statute,  to  organize  corporations  for  pecun- 
iary profit,  the  court  would  undoubtedly  hold 
the  statute  unconstitutional. 

"  And  yet  it  is  expedient  that  a  certain  amount 
of  intelligence  should  be  possessed  by  those  who 
undertake  the  management  of  great  enterprises. 
But  if  we  admit  of  the  educational  standard  in 
one  trade  or  profession,  upon  what  theory  can 
you  refuse  to  apply  it  in  any  other  ? 

"  The  arbitrary  character  of  the  law  is  further 
illustrated  in  the  provision  that  it  shall  not  be 
construed  to  prevent  the  sale  of  patent  or  pro- 
prietary medicines. 

"The  veriest  quack,  whether  resident  or  non- 
resident of  the  state,  may  compound  the  most 
worthless  or  injurious  nostrums,  and  by  public 
prints  or  by  means  of  medical  almanacs,  recom- 


256  APPENDIX. 

mend  and  advertise  them  as  remedies  for  all  the 
'  ills  that  flesh  is  heir  to,'  and  no  attempt  is  made 
to  prevent  or  regulate 'this.  But  however  intelli- 
gent the  proprietor  or  meritorious  his  compound, 
if  he  is  guilty  of  a  personal  interview  with  the 
patient,  and  attem})ts  to  tell  him  what  is  the 
matter,  and  which  of  his  advertised  compounds 
will  be  appropriate  to  his  case,  the  '  public  health ' 
requires  that  he  shall  be  fined  or  imprisoned.  In 
other  words,  the  law  justifies  and  encourages  the 
use  of  patent  medicines,  so  long  as  the  people  are 
willing  to  go  it  blind  and  take  this  or  that  remedy 
on  their  own  unaided  judgment  or  guess  ;  but  the 
proprietor  nor  any  other  man,  save  a  licensed 
physician,  may  not  tell  them  what  to  take  or 
w^hat  to  reject.  And  why  this  strange  anomaly 
and  inconsistency  ?  Merely  because  the  druggist 
has  his  profits  and  pecuniary  gains  out  of  the 
patent  medicines,  and  this  is  the  '  tub  to  the 
whale '  that  the  projectors  of  the  scheme  give  to 
the  druggist  to  secure  his  influence  to  sustain  the 
monopoly.  The  same  is  true  of  Colfax  water,  or 
mineral  waters  from  flowing  wells  or  springs.  It 
is  another  concession  to  buy  off  opposition  to  the 
monopoly.     Yet   all  these  features  of  the  law 


APPENDIX.  257 

demoDstrate  the  fact  that  its  provisions  are  arbi- 
trary restraints,  not  founded  on  any  reasonable 
or  logical  theories  of  protection  to  the  public 
health. 

"Upon  its  face  the  act  concedes  there  is  no 
standard  of  practice,  and  every  candid  man  must 
acknowledge  that  in  the  present  stage  of  medical 
science,  learned  men  are  further  than  ever  from 
agreeing  upon  any  standard  for  the  theory  and 
practice  of  medicine.  This  law  provides  for  and 
contemplates  the  granting  of  license  to  men  of 
different  schools,  opposite  and  antagonistic  in 
their  theories  and  practice,  for  the  sole  purpose 
of  securing  the  exclusion  of  others  from  practice, 
who  are  counted  out  only  because  it  is  not 
necessary,  in  order  to  secure  the  monopoly,  to 
count  them  in. 

"That  the  allopath  physician  on  the  board  of 
health,  if  exercising  his  own  judgment  as  to  the 
fitness  of  the  applicant  to  practice  medicine, 
would  exclude  the  homoeopath,  the  hydropath 
and  the  eclectic,  no  one  can  doubt,  unless  he  be- 
lieves the  allopath  is  a  hypocrite  and  does  not 
believe  in  the  teachinGcs  of  his  school  ;  and  that 
the  homoeopath  and  eclectic  would,  in  like  man- 


258  APPENDIX. 

ner,  exclude  the  allopath  with  his  alleged  '  min- 
eral poisons,'  must  also  be  conceded.  Why,  then, 
do  these  men  agree  to  forego  their  judgment  and 
conscientious  convictions  of  what  is  best  for  the 
public  health  ?  There  is  only  one  answer,  and 
that  is,  simply  because  their  combined  influence 
is  necessary  to  exclude  the  specialist,  the  itiner- 
ant, the  non-resident,  the  clairvoyant,  the  faith 
cure,  the  mesmeric,  the  magnetic  and  the  mid- 
wife. 

'*  Forty  3^ears  ago  the  allopath  would  have 
scouted  the  idea  of  toleratins;  these  other  schools 
of  medicine.  Under  the  legislation  of  a  few 
years  ago  and  under  the  decisions  of  boards  of 
examiners,  composed  of  their  schools,  the  eclectic 
and  Thompsonians  were  excluded  and  were  fined 
and  imprisoned  by  the  courts  :  State  v.  Thomp- 
son, 15  Wend.  395. 

"  But  things  have  changed.  Now  the  gentle- 
men of  the  old  school  find  among  the  most  intel- 
lig-ent  and  educated  classes  those  who  believe  in 
and  patronize  the  other  once  despised  and  perse- 
cuted schools,  and  in  this  law  they  make  com- 
mon cause  with  quite  a  number  of  them,  to  per- 
secute, fine  and  imprison  all  who  are  not  yet  suffi- 


APPENDIX.  259 

ciently  seated  in  the  public  confidence  and  esti- 
mation to  compel  recognition.  And  the  eclectic, 
whose  brother  is  sent  to  prison  in  West  Virginia, 
with  his  diploma  in  his  pocket,  is  hand  in  glove 
in  Iowa  with  the  persecutors  of  his  brother  in 
Virginia,  because  in  this  state  he  has  secured  a 
position  on  the  board  of  health,  and  he  is  ready 
now  to  fine  and  imprison  the  magnetic,  the  faith 
cure,  the  non-resident,  the  itinerant,  or  any  other 
man  that  the  legislature  will  allow  him  to  lay 
violent  hands  upon. 

"A  monopoly  is  defined  by  Bouvier  to  be 
'  an  institution  or  allowance  by  a  grant  from  the 
sovereign  power  of  the  state  by  commission,  let- 
ters patent,  or  otherwise,  to  any  person  or  cor- 
poration, by  which  the  exclusive  right  of  buying, 
selling,  making,  working  or  using  a  thing  is  given.' 

"  In  the  case  99  N.  Y.  386,  the  court  held  that 
a  statute  to  permit  the  fraudulent  sale  of  imita- 
tions of  butter  and  cheese  is  constitutional. 

"  But  the  legislature  went  further  and  enacted 
another  law  to  prohibit  the  manufacture  of  any 
article  intended  to  take  the  place  of  butter  with- 
out reference  to  the  question  of  fraud  or  imposi- 
tion, and  the  latter  act  was  held  unconstitutional. 


260  APPEin)IX. 

"  The  court  says  :  '  Measures  of  this  kind  are 
dangerous  even  to  their  promoters.  If  the  argu- 
ment of  the  respondent  in  support  of  the  absolute 
power  of  the  legislature  to  prohibit  one  branch 
of  industry  for  the  purpose  of  protecting  another 
with  which  it  competes  can  be  sustained,  why 
could  not  the  oleomargarine  manufacturers, 
should  they  obtain  sufficient  power  to  influence 
or  control  the  legislative  counsels,  prohibit  the 
manufacture  or  sale  of  dairy  products  ?  "Would 
arguments  then  be  found  wanting  to  demonstrate 
the  invalidity  under  the  Constitution  of  such  an 
act?  The  principle  is  the  same  in  both  cases. 
The  numbers  engaged  upon  each  side  of  the 
controversy  cannot  influence  the  question  here. 
Equal  rights  to  all  are  what  is  intended  to  be 
secured  by  the  establishment  of  constitutional 
limits  to  legislative  power,  and  impartial  tribu- 
nals to  enforce  them.' 

"Justice  Bradley,  of  the  Supreme  Court  of 
the  United  States,  in  the  slaughter-house  cases, 
1(5  Wallace,  116,  uses  the  following  language  : 
'  Rights  to  life,  liberty  and  the  pursuit  of  happi- 
ness are  equivalent  to  the  rights  of  life,  liberty 
and  property.     These  are  the  fundamental  rights 


APPENDIX.  261 

which  can  only  be  taken  away  by  due  process  of 
law,  and  which  can  only  be  interfered  with,  or 
the  enjoyment  of  which  can  only  be  modified  by 
lawful  regulations  necessary  or  proper  for  the 
mutual  good  of  all ;  and  these  rights,  I  contend, 
belong  to  the  citizens  of  every  free  government. 
For  the  preservation,  exercise  and  enjoyment  of 
these  rights,  the  individual  citizen,  as  a  necessity, 
must  be  left  free  to  adopt  such  calling,  profes- 
sion or  trade  as  may  seem  to  him  most  conclusive 
to  that  end.  Without  this  right  he  cannot  be  a 
freeman.  This  ris^ht  to  choose  one's  callinoj  is 
an  essential  part  of  that  liberty  which  it  is  the 
object  of  government  to  protect :  and  a  calling, 
when  chosen,  is  a  man's  property  and  right. 
Liberty  and  property  are  not  protected  where 
these  rights  are  arbitrarily  assailed.' 

"In  the  same  opinion,  page  120,  he  says: 
*  The  granting  of  monopolies  or  exclusive  priv- 
ileges to  individuals  or  corporations,  is  an  inva- 
sion of  the  right  of  others  to  choose  a  lawful 
calling,  and  an  infringement  of  personal  liberty. 
It  was  so  felt  by  the  English  nation  as  far  back 
as  the  reigns  of  Elizabeth  and  James.  A  fierce 
struggle  for  the  suppression  of  such  monopolies, 


262  APPENDIX. 

and  for  abolishing  the  prerogative  of  creating 
them,  was  made  and  was  successful.  The  statute 
of  21st  James,  abolishing  monopolies,  was  one  of 
those  constitutional  land-marks  of  English  lib- 
erty which  the  English  nation  so  highly  prize 
and  so  jealously  preserve.  It  was  a  part  of  that 
inheritance  which  our  fathers  brought  with  them. 
This  statute  abolished  all  monopolies  except 
grants  for  a  term  of  years  to  the  inventors  of 
new  manufactures.  This  exception  is  the  ground- 
work of  patents  for  new  inventions  and  copy- 
rights of  books.  These  have  always  been  sus- 
tained as  beneficial  to  the  state.  But  all  other 
monopolies  were  abolished  as  tending  to  the  im- 
poverishment of  the  people  and  to  interference 
with  their  free  pursuits.  And  ever  since  that 
struggle  no  English-speaking  people  have  ever 
endured  such  an  odious  badge  of  tyranny.' 

"The  opinion  of  many  other  eminent  jurists 
might  be  cited  to  the  same  effect,  but  I  deem  it 
unnecessary. 

*'  To  sum  up  my  conclusions  upon  this  law, 
they  are  briefly  as  follows  : 

^'  First.  The  provision  of  the  act  attempting 
to  discriminate  in  favor  of  those  who  have  re- 


APPENDIX.  263 

sided  and  practiced  five  years  within  the  state, 
and  to  exclude  physicians  of  like  experience  who 
have  resided  and  practiced  in  other  states,  is 
void  as  to  citizens  of  other  states,  and  clearly 
violates  the  provisions  of  the  Constitution  of  the 
United  States. 

"  Second.  The  provision  requiring  that  a  phy- 
sician who  has  practiced  five  years  in  the  state, 
must  have  practiced  three  years  in  one  locality, 
is  an  unjust  and  arbitrary  discrimination  and  is  a 
violation  of  articles  1  and  6  of  the  Bill  of  Rights 
of  the  Constitution  of  the  State  of  Iowa. 

"  Third.  The  same  is  true  of  the  provision 
that  makes  a  distinction  founded  on  sex,  as  to 
those  who  now  practice  midwifery. 

"  Fourth.  The  same  is  true  as  to  those  who 
prescribe  mineral  waters  from  flowing  springs  or 
wells, — I  don't  think  it  matters  whether  the  well 
flows  or  otherwise.  I  find  authorities,  which,  in 
my  judgment,  are  not  well  considered  or  well 
grounded  in  reason,  upon  which  it  is  possible  this 
law  may  be  sustained  by  our  Supreme  Court  in 
its  o^eneral  features,  but  I  am  clearlv  of  the 
opinion  that  the  entire  act  is  intended  to  establish 
and  procure   for  certain   schools  of  practice  a 


264  APPENDIX. 

monopoly,  founded  merely  on  arbitrary  legis- 
lative power  and  not  on  principle,  and  that  it 
ought  to  be  declared  void." 


TABLE  OF  CASES. 


A. 

Page. 

Academy  v.  Allen 280 

Adams  v.  Stuart 236 

Almon  V.  Nug-ent 214 

Allen  u  Merchants' Bank 228 

Allen  V.  Richards 230 

Alcott  V.  Barber 198 

Anderson  v.  Hamilton 282 

Arnold  v.  Richmond  Iron  Works 116 

B. 

Bank  v.  Rutland 6 

Bailout).  Prescott. 216,  229 

Baler  v.  State 122 

Banks  v.  Goodfellow  = 86 

Bartholomew  v.  Jackson 232 

Banks  v.  Goodfellow 87 

Bailey  u  State 123 

Baxter -y.  Abbott 24 

Barnard  v.  Means 215 

Bartholomew  v.  Jackson ,  ....  232 

Bank  v.  Wheeler 228 

Barley  v.  State. 83 

Bales  v.  State 84 

Bakei'  v.  People 187 

Bird  u  Bird 54 


266  TABLE    OF    CASES. 

Page. 

Baker  v.  Commonwealtli 203 

Blake  v.  People 6 

Bierce  v.  Stoking.    30 

Beene  v.  State 203 

Belirons  v.  McKinze 96 

Beals  V.  Lee 94 

Bennett  v.  Lockwood 222 

Bond  V.  Bond 84 

Boyland  v.  Meeker 87 

Boyd  V.  Sappington 231 

Boyce  v.  Smith , 94 

Boardman  v.  Woodman 31,  34,  86,  87 

Boyle  V.  Winslow 217 

Bovard  v.  State 110 

Bower -y.  Smith 236 

Boswell  V.  Com 117 

Bronson  v.  Hoffman 110 

Bradley -y.  Fisher 203 

Briggs  V.  Taylor 210 

Brannatyne  'y.  Brannatyne 85 

Brown  v.  Payson 146 

Brice  v.  State 192 

Brooks  V.  Barrett 88 

Bradley  v.  Fisher 202 

Burrows  v.  Burrows 88 

c. 

Carpenter  v.  Calvert 54 

Carpenter  v.  Blake 208,  210 

Carter  v.  Boehem 7 

Cantling  v.  Railroad  Co 7 

Carter -y.  State 122 


TABLE   OF    CASES.  267 

Page. 

Carter  v.  State 84 

Caleb-y.  State 10,  31 

Childsu  Drake •. .  224 

Charce  v.  State 131 

Choice  V.  State ,.-63,  117,  119,  131 

Christee  v.  Sawyer 280 

Chandler  v.  Barrett 93 

CiWjv.  Cilly 93 

Clark  V.  "Fisher 54,  87 

Clark  u  State 95 

Clapp'y.  FuUerton 31,  86,  87 

Commonwealth  v.  Rogers 96 

Commonwealth  v.  Blair 185 

Commonwealth  v.  Adams v. . . .  185 

Commonwealth  v.  French 119 

Commonwealth  v.  Mosler 61,  110,  114 

Commonwealth  v.  Thompson 210 

Commonwealth  v.  Rogers 18,  23,  33,  43,  47,  84,  94,  110 

Commonwealth  ^■>.  Heath 62 

Commonwealth  v.  Meriam 98 

Commonwealth  v.  Heath 97 

Commonwealth  v.  Sturtevant 8 

Commonwealth  v.  Hawkins 119 

Commonwealth  v.  Eddy 94 

Commissioners  v.  Brewing-town 233 

Commonwealth  v.  Wood 148 

Commonwealth  v.  Pierce 193 

Commonwealth  v.  Hawkins 129 

Commonwealth  v.  Sturtevant 81 

Commonwealth  v.  Wilson 31 

Commonwealth  v.  Taylor 186 

Couch  V.  Couch 54 


268  TABLE   OF   CASES. 

Page. 

Cookv.  Ellis. 224 

Cooper  V.  Railroad  Co 231 

Crolires  v.  Stark. 54 

Cobb  V.  Superior  Judge 204 

Corwin  v.  Walton 224 

Commissioners  v.  Chambers 233 

Coben  v.  Insurance  Co 137 

Colton  V.  Ulmer 93 

Creigbton  v.  Toledo 229 

Craig  V.  Chambers , 222 

Crane  v.  McLaw 236 

Crosby  v.  Berger 140 

Crowningshield  v.  Crowningshield 318 

Creely  vr  Ostrander 54 

Cummings  v.  Nichols 230 

D. 

Daniel  v.  Daniel 54 

Davison  v.  Davidson 233 

Davis  V.  State 17 

Dauson  v.  State 119 

De  Wolf  v.  Chicago 230 

Dew  V.  Clark 75 

Dennett  v.  Dennett , 84 

Dexter  ?).  Hall 23 

De  May  7J.  Roberts 218 

Dixon  V.  Parmelee 138 

Dilleber  v.  Home  Life  Insurance  Company 142,  143 

Dickinson  v.  Fitchburgh 9 

Doane  v.  Badger 232 

Dorwin  v.  Potter .^ 222 

Duffield  V.  Morris 86 


TABLE   OF   CASES.  269 

Page. 

Dunn  V.  People 163 

Diirkee  v.  Leland 140 

Dunbar  v.  Williams 231 

E. 

Eckhardt  v.  People , 185 

Eckert  v.  Flowey 23,     31 

Edington  v.  Life  Ins.  Co 140,  142 

Emerson  v.  Gas  Co 6 

Evarts  v.  Adams 232 

Evans  v.  People 148,  153,  163 

Express  Co.  v.  McVeigh 228 

F. 

Fairchild  v.  Bascomb 8,     17 

Farrell  v.  Brennan 31,     34 

Farrer  v.  State 63,     94 

Fletcher  v.  Dangerfield 203 

Flannigan  v.  People '2,  117 

Flannagan  v.  People 131,  181 

Flack  V.  Null  146 

Ford  V.  Ward 231 

Foster  v.  Means 90 

Fraser  v.  Tupper 8 

Freeman  v.  People 34,  63,  97,  98,  110,  120 

Fort  V.  Hayne 146 

Finch  D.  Gridley 237 

Gabriel  v.  Baii- 93 

Garland  v.  Wholeman 125 

Gant  V.  Thompson 116 


270  TABLE    OF   CASES. 

Page. 

Gardner  v.  People 10 

Gay  V.  Mutual  Insurance  Compaay 12 

Gaines  v.  Commonwealth 10 

Gerish  v.  Nason 93 

Gehrke  v.  State 31 

Geiselman  v.  Scott 223 

Gibson  v.  Williams 7 

Gove  V.  Gibson 116 

Grattan  v.  Life  Insurance  Company 143,  145 

Grabill  v.  Barr 93 

Grandier  v.  Reading- 233 

Guthrie  v.  Pierce 93 

H. 

Haire  ik  Reese , 214,  215 

Hadley  v.  Watson 224 

Harrison  v.  Rowan 52 

Harrison  v.  Berkley c 221 

Hardy  -y.  Merill 6,  8,  31,  80 

Hamilton  v.  McPherson 222 

Hapg-ood  V.  Houghton 230 

Harvey  v.  Chase 86,     87 

Harvey  v.  SuUens 93 

Hei-tzog  V.  Hertzog" 232 

Heald  v.  Thin^ 24 

Hester  v.  State 115 

Hendrickson  v.  Drake 224 

Higgins  V.  Carleton 87 

Higgins  V.  Higg-ins 54 

Hibbard  v.  Thompson 223 

Hoopingarner  v.  Levy 215 

Hovey  v.  Hovey 84 


TABLE    OF   CASES.  271 

Page. 

Holmes  v.  Halde 189 

Howard  v.  Grover 210 

HofFs  V.  People 94 

Hoppes  V.  State 61,  114 

Hunt  V.  People 162,  163 

Hurley  v.  Van  Wag-oner 230 

Hundley  v.  State 94 

Humphreys  v.  State 13,  119 

I. 

Inhabitants  v.  Henshaw 137,  141 

J. 

Jackson  v.  French 146 

Jackson  v.  Texas 202 

Johnson  v.  Moore 75 

Johnson  v.  Johnson 141 

Jones  V.  Quincey 230 

Jones  V.  Fay.  .   217 

Joyce  V.  Insurance  Company 7 

Juzan  V.  Toulman 95 

K. 

Keenan  v.  Commonwealth 119 

Kenny -u.  People 117,119,131,  229 

Kelogg-  V.  Kelog-g- 140 

Kin'ne  v.  Kinne 88 

Klopper  V.  Bromme 224 

Klingensmith -y.  Kepler 201 

L. 

Lamphier  v.  Phipos 214,  215 

Landon  v  Humphrey 210 


272  TABLE   OF   CASES. 

Page. 

Landsberg-er  v.  Gorham 146 

JLang  V.  Whidden 116 

Law  V.  Railroad 230 

Leighton  V.  Sargent 15,210,  228 

Lee -y.  Lee 232,  233 

Levee  Com.  v.  Harris 232 

Lohman  v.  People , 163 

Lowder  v.  Lowder 54,  87 

Lonergan -y.  People 83,118,123,  129 

Luce  V.  Dorcliester  Insurance  Company . . . , 8 

Lucas  V.  Parsons 88 

Lynde  v.  Judd 140 

Lynch  v.  Onondaga  Salt  Company 229 

M. 

MacNevins  v.  Lowe. 210 

McAlister -y.  State... 17,  43,  60,  81,  96 

Mclntyre  v.  People .„. 119 

McCm-ry  v.  Hooper 90 

McCandless  v.  McWha 208,  215,  222,  223 

McGrew  v.  Stone 222 

McLalon  v.  Adams 208 

Marsh -u.  Davidson 191,  1^8 

Martin  v.  Fox 230 

Maconahay  v.  State 122 

Matter  v.  CofFman *  93 

Medway -?).  Croft 41 

Mitchell  V.  Commonwealth 153 

Mitchell -y.  Kingman 116 

Morse  v.  Crawford 96 

Mori'is  V.  Stokes 93 

Monegan  v.  People , 162 


TABLE    OF    CASES.  273 

Page. 

Muldowney  v.  Illinois  Central  Railroad 8 

Hunger  v.  Mung-er 23^ 

Mumford  v.  Brown 232 

Musser  v.  Chase 210 

N. 

Negi'O  Jerry  v.  Townshand 17 

New  Eng-land  Glass  Co.  v.  Lovell 8 

Nowell  V.  Wright 8 

0. 

O'Brien  v.  People 83,  119,  123,  129 

Ogden  V.  Saunders 228 

O'Hara  v.  Wells 214 

P. 

Parker  v.  Carter 146 

Page  V.  Parker 8 

Patten  v.  Wiggin 107,  206 

Patterson  v.  People 121 

Peopleu  Rogers 119,  131 

People -y.  Davis 162,  163 

People  V.  Lohman 163 

People  V.  Palmer 201 

People  V.  McCann ,      17 

People  V.  Kline 1 31 

People  V.  Robinson 11,  115,  118 

People  V.  Hammill 118 

People  V.  Coffinan 63,     97 

People  V.  Benjamin 140 

Percival  v.  Nevilla 232 

People  V.  Meyers 93 

People  V.  Sprague , 97 


274  TABLE   OF   CASES. 

Page. 

People  V.  Murpliy 145 

People  V.  Schanchez 23 

People -y.  Stout. 139 

People  V.  Lohman 205 

People  i).  Moett 131 

People  V.  Stockham 162 

People  V.  Eastwood 18 

People  V.  Vedder 185 

People  V.  Montgomery 131 

Pigman  v.  State 119 

Pirtie  v.  State 

Potter  V.  Warner 210 

Potter  V.  Virgil 228 

Potts  V.  House 54 

Patten  v.  Wiggin .210,  215 

Pond?^.  State 110 

Powers  V.  Russell 218 

R. 

Raynor  v.  State 198 

RaflFerty  v.  People 119,  131 

Ramage  v.  Ryan 7 

Rex  V.  Oxford 48,  60,  62 

Rex  V.  Goode 43 

Reg.  V.  Pate 64 

Reg.  D.  Barton 63,  64,  114 

Rex  u  Spiller 191 

Rex  V.  Ellis 191 

Rex  V.  Van  Butchell 191 

Rex  V.  St.  John  Long 191 

Rex  V.  TVilliams 191 

Rex  V.  Long 208 

R.  V.  Wright 178 


TABLE   OF   CASES.  275 

Page. 

R.  V.  Thomas 117 

R.  u  Brain 174 

R.  u  Trilloe 174 

R.  V.  Brain  , 178 

R.  v.  Meakin 118 

R.V.  Goode 62 

R.  V.  Barton 62 

R.v.  Sellie 178 

Reg.  V.  Townley , 114 

Realu  People > 31,  83,  123 

Reg-.  V.  McNaughton 99,  115 

R.  -u.  Hig-ginson 17 

R.  V.  Francis. : > 17 

R.  V.  Richards 17 

R.  V.  Meakin 117 

R.  V.  Crutchley 174 

R.  V.  Sellis 174 

R.  V.  People 118 

R.  V.  Enoch 174 

R.  -y.  Meakin 122 

R.  V.  Crutchley 178 

R.  V.  Watson 122 

R.  V.  Runie 122 

Reynolds  v.  Graves 210,  215 

Richardson  v.  Strong 94 

Roe-y.  Taylor 93 

Rogers  v.  Walker 86,     93 

Roberts  v.  Mason 224 

Rutherford  v.  Morris 54,     93 

S. 

Sanchez  v.  People 110,  131 

Scott  u.  Com 61,  114 


276  TABLE    OF   CASES. 

Page. 

Secoa'y.  True. 228 

Saxtonu  Stowell 203 

Seaman's  Friend  Society  v.  Hopper 86 

Sbannahan  v.  State 81 

Sherman  v.  Sherman ^ 138 

Shannahan  v.  Commonwealth 119 

Shear  v.  Redf 208 

Shater  v.  People 63 

Sibley  v.  Waffle... 146 

Slemmer  v.  Weight 201 

Slater  v.  Baker 208 

Smith  V.  Watson  ..  .^. 231 

Small  V.  Howard 210 

Smith -y.  Tracy 198 

Smith  V.  Beatty 95 

Smith  V.  Lane 198 

Smith  V.  Commonwealth. 119,  122 

Smothers  v.  Hanks 210,  214,  215 

Sowers  v.  Pumphrey 84 

State 'y.  Birdsall 122 

State  u  Bullock 119 

Stover  V.  Bluehill 222 

State  V.  Hyer 187 

State  V.  Hunting 97 

Stackhouse  v.  Horton 83,  131 

State  •«.  Hayes... 9 

State  V.  Harlowe 115 

State  V.  Fitzgerald 186 

State  V.  Felter 61,  94,  114 

State -y.  Gedicke 187 

State  V.  Knight 30 

State  V.  Klinger 17,  31,  34,     82 

State  V.  Lawrence 62,  94,  __  97 


TABLE   OF  OASES.  277 

Page. 

States  Harlow 1^^ 

Stout  V.  Proctor "•-  • ^03 

States?.  Reddick ^^ 

State  V.  Reidemire ^^ 

State -y.  Murphy 1^2 

State  V.  Sherwood • 1^'^ 

Stated).  Spencer 4,31,  60,  62,  96,  115 

State  u  Stokeley ^'^ 

State 'y.  Schultz • 1^^ 

State -y.  Sharp • 200 

State -y.  Neeley 11^ 

State  V.  Windsor -    1*^'     ^^ 

State?).  Wilson 1^2 

Stanton  v.  Weatherwax «-•  •  •      ^'^ 

State -y.  Russell ^^^ 

State  Bank  v.  McCoy ^^ 

Stackhouse  v.  Horton ^^ 

Stevens  v.  State 61,  114 

Swan  V.  People ^^* 

T. 

Trumbull  v.  Gibbons 87,     96 

Todd 'y.  Myers 216 

Taylor  v.  Kelly 83,  86,     87 

Teal  V.  Barton 8 

Thompson  v.  Kyner 93 

Thomas  v.  Kyner ^4 

Terry  v.  Buffing-ton ^4 

Taylor  v.  State 188 

Teft-y.  Wilcox , 210 

Taylor  v.  Foster 146 

Tracy  v.  Sackett 9" 

Thomas  v.  Stump -«  ^4 


278  TABLE   OF   CASES. 

U,  Page. 

United  States -y.  McGlue 17,83,  123 

United  States -u.  Clark 83,  123 

United  States  v.  Holmes 

United  States  u  Drew 83,  122,  132 

V. 

Vance  v.  Com 96 

Van  Arman  v.  Boynton 230 

Van  Alstyne  v.  Hunter .... 54 

w. 

Watson  V.  Ladoux 232 

Walkeru  Brown. 229 

Watsons  State 163,  185 

Williams  v.  Cameron 96 

Westover  v.  Etna  Life  Insurance  Company 145 

Wetherbee  v.  Wetherbee 17,  24 

Weems  v.  Weems 31 

Wenger-y.  Calder 226 

Wendel  v.  State 198 

Weeks?;.  Holmes 230 

Westover  v.  Mtna,  Life  Ins.  Co 142 

White  V.  Ballou 8 

Willis  V.  People 62,  110,  115,  131 

Wilkinson  v.  Mosely 18 

Williams -iJ.  Breakell 231 

Wilson -y.  State 148 

Wilson  V.  Reg 163 

Winans^.  New  York  &  E.  R.  R.  Co 9 

Woodbury  v.  Obear 16,  23 

Y. 

Yoe  V.  McCord 54,     85 

z. 

Zimmerman  1).  Moeri  son 198 


TO     FIELD'S    MEDICO-LEGAL    GUIDE. 
•^•^^^' 

SEC. 

ABORTION.     (See  Miscarriage  ;  Infanticide.) 

defined  and  explained 73 

meaning-  of  the  term  "  quick  with  child  " 73 

common,  under  various  circumstances 73 

miscai'riag-e,  what  it  is 73 

maternal  causes  of 74 

foetal  causes  of , 75 

may  be  partly  maternal,  partly  foetal 75 

natural  and  innocent  causes  of 76 

artificial  and  innocent  abortion 77 

premature  labor 77 

statutes  relating-  to  the  subject 78 

when  premature  labor  may  be  properly  induced..  79 

chief  methods  employed  to  produce 78 

ci-iminal ;  methods  of  producing 79 

statutory  provisions  on  the  subject 80 

construction  of  statutes  on  the  subject 81 

in  case  of  death  resulting  from 82 

statutes  relating  to 83 

signs  of,  during  life 84 


280  INDEX. 

ABO'RTIO'N— Continued;.  sec. 

general  symptoms  of  . 84 

signs  on  examination  after  death 85 

examination  of  the  foetus 86 

summary  of  matters  to  be  observed  on  examina- 
tion as  to 90 

where  the  woman  is  alive 90 

dead 90 

indictments  for,  under  statutes 90 

statutes  of  New  York  on  the  subject 91 

Texas , 91 

Iowa .' 91 

Massachusetts 91 

Illinois 91 

ALCOHOL, 

its  uses  and  effects 33 

psychological  effects 34 

ALCOLOLISM, 

defined 85 

forms  of  insanity  caused  by 35 

symptoms  similar  to  quininism 36 

delirium  in  general    37 

legal  relations  of 38 

AMENTIA.     (See  Unsoundness  of  Mind  ;  Insanity.) 

C. 
CIVIL  LIABILITY, 

of  medical  men  for  malpractice 100-107 

malpractice  ;  various  kinds  of    100 

liability  for,  in  general 101 


INDEX.  ii81 

CIVIL  JjlABlLlTY— Continued.  sec. 

skill  required  of  physician  or  surgeon 102 

ordinary  skill  required 102 

not  the  highest  skill 102 

care  and  skill  required,  illustrated 102 

highest  degree  not  required 103 

implied  duty  of 104 

general  principles  applicable  to  dentists 105 

under  statutes 105 

in  case  of  impropriety 106 

proof  of  malpractice 107 

matters  in  defense , .  108 

in  case  of  contributory  negligence 109 

punishment  for  the  crime  no  defense 110 

the  measure  of  damag-es  ;  rule Ill 

COMMUNICATIONS  PROTECTED.    (See  Privileged 
Communication.  ) 
generally  when  made  to  a  professional  person  by 

client  or  patient 66-72 

by  statutes 70 

in  case  of  surgeons 72 

COMPENSATION,     . 

contract  for  services 112 

may  be  express  or  implied 112 

when  express  112 

implied 112 

common  presumptions  relating  to 113 

amount  of 113 

for  services  rendered  at  request  of  a  third  party. .  114 

in  case  of  intrusive  and  voluntary  services 115 

measure  of  the  value  of 116 


282  INDEX. 

COMPENSATION— Cow^w^^e^?.  sec. 

in  case  of  judgment  for  services 117 

generally  bar  to  action  for  malpractice 117 

statutes  regulating 118 

requiring  diploma 118 

certificate 118 

diploma,  how  proved 119 

CRIMINAL  LIABILITY, 

for  negligence  or  misconduct 92,  93 

statutory  provisions  on  the  subject 92 

general  liability  at  common  law 93 

for  practicing  without  license 94-96 

provisions  of  statutes  on  the  subject 94 

penalties  imposed 95 

in  case  of  intoxication 96 

for  misconduct  of  attorneys 97 

attorneys,  duty  of,  to  the  court 98 

suspension  of 98,  99 

D. 

DAMAGES, 

matters  in  defense  or  mitigation  of 108 

in  case  of  contributory  negligence 109 

the  measure  of 110,  111 

DELIRIUM  TREMENS, 

cause  of ' . . . .  39 

symptoms  of .  . . .  ^ 40 

general  characteristics  of 40 

hallucinations  of 40 

delusions  of 40 


INDEX.  283 

DELIRIUM  TKEMEJ^^S— Continued.  sec. 

legal  relations  of 41 

excuse  in  criminal  cases , 58 

DEMENTIA.     (See  Insanity.) 

distinguished  from  amentia 20 

legal  relations  of 21 

in  case  of  wills 21 

DENTISTS.     (See  Criminal  Liability.) 

civil  and  criminal  liability,  the  same  as  surgeons..  105 

DIPLOMA.     (See  Criminal  Liability.) 

general  provisions  of  the  statutes  requiring 94 

criminal  liability  for  practicing  without 95 

requirements  of  statutes  relating  to 95 

DREAMING, 

illusions  and  delusions  common  to 59 

legal  relations  of 60 

DRUNKENNESS.     (See  Insaitity  ;  Alcoholism.) 

legal  responsibility  in  case  of 56,  57 


E. 

EXPERTS.     (See  Expert  Testimony.) 

opinions  of  medical,  as  to  sanity 5 

on  hypothetical  cases 5 

general  doctrine  in  respect  to 5 

rule  where  it  rests  upon  personal  examination,  6 

when  facts  should  be  stated 6 

governmental,  recommended 7 

general  consideration  of 7 


284  INDEX. 

'EXPBRT^— Continued.  sec. 

opinion  of  non-experts 8 

wlien  proper 8 

distinction  between,  and  non-experts 9 

non-experts  g-enerally  confined  to  facts 9 

EXPERT  TESTIMONY.     (See  Evidence  ;  Experts.) 

in  general 3 

opinions  of  medical  men 3 

scientific  men '. 3 

in  other  cases 3 

as  to  value,  etc 3 

not  allowed  as  to  matters  of  common  knowl- 
edge   3 

when  allowed  as  evidence 3 

unsatisfactory  character  of 4 

as  to  sanity 4 

cause  of  death 4 

general  consideration  of 4 

conflict  of  opinions  in  important  cases 4 

opinions  as  to  sanity 5 

on  hypothetical  cases 5 

value  of 5 

cases  illustrating 5 

what  it  depends  upon 5 

where  it  rests  upon  personal  examination ....  6 

medical,  should  be  appointed  by  government ....  7 

reasons  stated ,  7 

opinions  of  non-experts,  when  proper 8 

distinction  between  expert  and  common  witnesses..  9 
non-experts  cannot  give  an  opinion  upon  hypotheti- 
cal case 9 

cases  illustrating 9 

in  criminal  cases 9 


INDEX.  285 

I. 

INSANITY,     (iee  Unsoundness  of  Mind.)  sec. 

varieties  of 10 

defined  and  described 11 

instances  of , 11 

amentia  ;  what  is  ementia ,  12 

imbecility  defined 13 

cretinism 14 

idiocy 15 

imbecility 16 

as  a  civil  and  criminal  defense 17,  18 

g-eneral  moral  imbeciles  19 

dementia  disting-uished  from  amentia 20 

degrees  of 20 

senile 20 

illusti-ation  of 20 

legal  relations  of 21 

in  case  of  wills 21 

mania  defined 23 

general 23 

character  of 23 

intellectual 24 

partial  or  monomania 25 

delusions  and  hallucinations 26 

moral  and  effective 27 

morbid  impulses 27 

homicidal 28 

as  a  defense , 28 

kleptomanic,  a  propensity  to  stea    29 

pyromania,  a  x^i'opensity  to  burn 31 

as  a  defense  not  favored 29,  32 

delirium  in  general 37 


286  INDEX. 

INBANITY— Continued.  sec. 

legal  relations  of 38 

delirium  tremens 39 

symptoms*  of ■  40 

legal  relation  of. 41 

civil  acts  of  persons  subject  to 42 

in  case  of  wills 43 

conduct  of  the  testator 44 

test  of  capacity  to  manage  business 45 

to  contract , 48 

burden  of  proof , , 46 

general  presumptions 47 

liability  for  torts ....  49 

as  a  defense  against  crime 50 

insane  delusions  as  a  defense 51 

irresistible  impulse , 51 

McNaugh ton's  case 51 

common  sources  of , 52 

test  of  capacity 53 

impulsive  mania 54 

defense 55 

responsibility  in  case  of  drunkeness 56 

drunkenness  as  a  mitigation 57 

delirium  tremens  as  an  excuse ^^  58 

delirium 59 

illusions  and  delusions 59 

dreaming,  legal  relations  of 60 

somnambulism,  legal  relations  of 61,  62 

statutory  provisions  relating  to  mental  unsound- 
ness   63 

construction  of  statutes 64 

rules  suggested  on  examination 65 


INDEX.  287 

IMBECILES,  SBC. 

in  general , 16 

civil  and  criminal  liability  of 17 

not  generally  liable  for  crimes 18 

moral  T. 19 

IMBECILITY.   (See  Insanity  ;  Unsoundness  of  Mind.  ) 

wliat  is 16 

an  excuse  in  criminal  cases 18 

INFANTICIDE.     (See  Abortion  ;  Fceticidb.) 

distinction  between,  and  foeticide 87 

evidence  of  life  subsequent  to  birth 88 

modes  of  destroying-  a  child  after  birth 89 

L. 

LICENSE,  OR  DIPLOMA.     (See  Criminal  Liability.) 

practice  without,  prohibited 94 

a  crime 95 

M. 

MANIA.     (See  Insanity.) 

in  general 21 

defined   22 

general 23 

intellectual 24 

partial,  or  monomania 25 

delusions  and  hallucinations   26 

moral  and  effective  27 

morbid  impulses 27 

homicidal 29 

kleptomania 32 


288  INDEX. 

MALPRACTICE.      (See   Criminal   Liability  ;    Civil 

Liability.)  sec. 

civil  liability  for 100-107 

burden  of  proof  of 107 

MENTAL  CONDITION.     (See  Insanity.) 

rules  for  determining" 65 

MEDICAL  ETHICS, 

code  of,  in  New  York 120 

general  rules .• 120 

MEDICAL  WITNESSES.     (See  Witnesses.) 

compulsory  attendance  of 1 

by  subpoena 1 

fees  of 1 

excuse  for  non-attendance 1 

oath  of 2 

test  of  competence  of. 2 

religious  belief  of. 2 

statutes  regulating  subject 2 

0. 

OATHS.     (See  Witnesses.) 

religious  belief  required 2 

generally  unnecessary 2 

P. 

PROTECTED  COMMUNICATIONS.    (See  Privileged 
Communications.  ) 

PRIVILEGED  COMMUNICATIONS, 

at  common  law  between  attorney  and  client 66 

under  statutes 67 


INDEX.  289 

PRIVILEGED  COMMUNICATIONS— Continued.         sec. 

protection  of,  made  to  priest  or  clerg-yman 68 

may  be  waived 

constrnction  of  statutes  on  the  subject 69 

general  rule  applied  by  statute  to  other  professions,  69 

applicable  to  physicians  and  surgeons 70 

construction  of  the  statutes 70 

applicable  to  all  professions 71 

illustration  of,  in  case  of  physicians  and  sur- 
geons    72 

8. 

SOMNAMBULISM, 

common  manifestations  of 61 

legal  relations  of 62 

STATUTORY  PROVISION.     (See  Insanity.) 

on  the  subject  of  insanity 64 

u. 

UNSOUNDNESS  OF  MIND.     (See  Insanity.) 

varieties  of ; 10 

defined  and  described 11 

cases  illustrating  the  subject 11 

amentia , 12 

imbecility 13 

cretinism 14 

idiocy , 15 

imbecility 16 

liability  of  imbeciles 17 

for  crimes 18 

of  moral  imbeciles 19 


290  INDEX. 

UNSOUNDNESS  OF  MIND— Continued.  sec. 

dementia  distingfuished  from  amentia 20 

senile 20 

legal  relations  of 21 

in  cases  of  wills 21 

mania  defined 22 

general 23 

character  of 23 

intellectual 24 

partial 25 

delusions  and  hallucinationa 26 

moral  and  effective 27 

homicidal 28 

kleptomania 29 

pyi'omania,  or  propensity ^to  burn 31 

not  favored  as  defenses 32 

delirium  in  general 37 

legal  relation  of 38 

delirium  tremens 39 

symptoms  of 40 

characteristics  of 40 

legal  relations  of. «=  41 

civil  actions  of  persons  of 42 

in  case  of  wills 43 

in  case  of  testators 44 

conduct  of 44 

test  of  capacity  to  manage  business 45 

conduct 45 

doctrine  as  to  the  burden  of  proof 46 

general  presumptions 47 

test  of  capacity  to  contract 48 

liability  for  torts 49 

as  a  defense  to  a  criminal  charge 50 


INDEX.  291 

UNSOUNDNESS  OF  MmD— Continued.  sec. 

insane  delusions 51 

irresistible  imj)ulses 51 

common  sources  and  manifestations  of 52 

test  of  capacity  for  criminal  responsibility 53 

rmcontrollable  impulse 54 

defense  on  the  ground  of 55 

in  case  of  di-unkenness 56 

drunkenness  as  a  mitigation  of  criminal  acts 57 

delirium  tremens  as  an  excuse 58 

dreaming-,  illusions  common  to 59 

legal  relations  of 60 

somnambulism,  manifestations  of 61 

legal  relations  of 62 

statutoi'y  provisions  relating  to 63 

construction  of 64 

•  rules  suggested  on  examination  for 65 

WITNESSES.     (See  Medical  Witnesses  ;  Experts.) 

compulsory  attendance  of 1 

by  subpoena 1 

fees  of. 1 

excuse  of,  for  non-attendance 1 

the  oath 2 

test  of  competence  of 2 

religious  belief  of 2 

statutes  relating  to 2 

WILLS, 

When  voidable  for  incompetence  of  testator ....   21,  43 


Date  Due 


'■2-7-5  •) 


\*^'S'  > 


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